Fair trial and presumption of innocence
Section 69(1) of the Constitution provides that a person charged with a criminal offence has the right to a fair trial before an independent and impartial court. This right is absolute as in terms of section 86(3)(e) this right is specifically included as a right that may not be limited by law and it is also provided that no person may limit this right.
Section 70(1)(a) of the Constitution provides that a person accused of a criminal offence has the right to be presumed innocent until proven guilty.
Section 70(1)(g),(h), (i) and (j) respective provide that a person charged with a criminal offence has the right:
- to adduce and challenge evidence;
- to remain silent and not to testify or be compelled to give self-incriminating evidence;
- to have the proceedings of the trial interpreted into a language that the person understands;
Section 70(2) provides that where in section 70(1) requires information has to be given to a person—
- the information must be given in a language the person understands; and
- if the person cannot read or write, any document embodying the information must be explained in such a way that the person understands it.
In S v Mashayamombe HH-596-15 the court pointed out that a stay of criminal proceedings could be granted where there where, in the circumstances of a case, it is not possible for an accused to be guaranteed a fair trial by reason of some other factors, such as abuse of criminal procedure, where criminal proceedings are instituted to achieve a purpose other than that which they are by law designed to achieve. An abuse of process application should only be granted on an exceptional basis. It is a measure of last resort, to be adopted where all other possible measures have been exhausted. The abuse of process doctrine is ordinarily concerned with serious prosecutorial misconduct or with serious breaches of the rights of an accused by state authorities
Crimes committed extra- territorially
Section 5 of CL Code provides that a court can try any crime either in terms of CLCode or any other enactment if the crime or an essential element of the crime was committed:
- wholly inside Zimbabwe;
- partly outside Zimbabwe if the conduct that completed the crime took place inside Zimbabwe;
- wholly or partly outside Zimbabwe if the crime is a crime against the public security in Zimbabwe or against the safety of the State of Zimbabwe or the crime has produced or was intended to produce a harmful effect in Zimbabwe or the accused realized there was a real risk that it might produce such an effect.
Section 5(2) provides that any other enactment providing for extra-territorial effect will continue to apply. For instance, there are various offences under the Exchange Control Act [Chapter 22:05] which can be committed extraterritorially.
For the position under the common law see Mharapara 1985 (2) ZLR 211 (S) and Kapurira S-110-92.
Accused illegally brought into jurisdiction
This a complex issue. If this issue arises in a case in the magistrates court, the magistrate should refer to case of Beahan 1991 (2) ZLR 98 (S) where this matter is dealt with. If X has been kidnapped from the foreign State, thereby violating the sovereignty of that State, jurisdiction will not be assured. But the court will have jurisdiction if X is surrendered by the foreign State in contravention of the municipal law of the State of refuge.
In Chinanzvavana & Ors v AG 2010 (2) ZLR 43 (H) the applicants had been arrested and detained. They alleged that they has been unlawfully deprived of their liberty, had been subjected to inhuman and degrading treatment in custody and had been kidnapped by state security agents inside the country, which kidnapping had been condoned by the police. The court ruled that under the constitution everyone is entitled to protection of the law. Where the accused are brought before the court after illegal arrest and detention the court must consider whether it should decline jurisdiction. The cases dealing with situations where the accused have been kidnapped outside the country and brought before the court provided some guidance in this regard.
Bias of judicial officer
Every accused person has the right to a fair trial by an impartial judicial officer. If the judicial officer is biased or there is a reasonable suspicion that he or she will be biased, the defence lawyer has a duty to raise this matter and to request that the magistrate recuse himself or herself. The tests for bias on the part of a judicial officer are objective: whether, as a matter of fact, there is a real possibility of bias, or whether there is a reasonable belief that a real likelihood of bias exists. In either case the party seeking recusal must show a reasonable fear, based on objective grounds, that the trial will not be impartial: Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H).
Before making an application for a judicial officer’s recusal, the legal practitioner must satisfy himself or herself that there are well-founded grounds for applying for the recusal of the judicial officer concerned. The legal practitioner must not simply base the application on what he or she has been told by his or her client without checking this information. Thus in the case of Muzana & Ors S-105-89, the Supreme Court severely censured a defence lawyer who had made serious allegations of partiality and bias on the part of a magistrate in an effort to get him or her to recuse himself. He or she had simply repeated his or her client’s assertions without having made any effort to check whether there were any facts to substantiate these allegations. In the case of S C Shaw (Pvt) Ltd v Minister of Lands S-32-05 the lawyer representing a client who was challenging the validity of compulsory acquisition of land alleged that the acceptance of offers of land by judges prior to the determination of the validity of the acquisition of the land, together with improper pressures brought to bear on judges by members of the government and cabinet, was not compatible with constitutional concept of a fair trial before an independent tribunal. No evidence was submitted in support of this allegation. It was held that courts in Zimbabwe have a responsibility to protect their dignity. Where legal practitioners, who are officers of the court, and as such, are expected to know better, make irresponsible submissions scandalizing the court mere admonition is inadequate and action should be taken to punish such legal practitioners for contempt of court.
An application for the recusal of a judicial officer must be made respectfully and tactfully. The judicial officer should where possible be informed of the application and the grounds for it before it is made. This can be done by going to see the judicial officer in his or her chambers, together with the prosecutor, and telling him or her why it is felt he or she should recuse himself or herself. This will enable the judicial officer to consider the question in private and to avoid the possible embarrassment of an application being made in open court.
For the public to have confidence in the administration of justice, it is essential that the courts are seen to be fair and impartial. A judicial officer should therefore not try a case if X or the complainant is his or her friend or enemy or is his or her relative So too he or she should not try a case involving his or her wife’s or her husband’s mother or the spouse of one of his or her long standing and trusted court officials.
If the prosecutor wrongly discloses the previous convictions to the magistrate during the course of the trial, the judicial officer is obliged to recuse himself or herself. If he or she does not do so, the defence lawyer should request that he or she recuse himself or herself.
The conduct of a judicial officer during the course of the trial can lead to a reasonable apprehension of bias. Judicial officers who are presiding over criminal cases must not descend into the arena in the sense that they must not intervene during the course of trials in such a manner or to such an extent as to lead to an inference of lack of impartiality and open-mindedness. They are entitled to ask questions of witnesses in order to clarify the evidence, but they must refrain from bombarding them with questions to such an extent that they are disconcerted. If magistrates take over the role of examining or cross-examining witnesses they will not be able objectively to adjudicate on the evidence. They should not engage in questioning in way that gives the appearance that they are displaying bias in favour of prosecution. In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the conduct of the magistrate towards the applicant throughout the trial was such that a fair trial of the applicant was impossible in her court. Apart from a number of irregularities, there were numerous indications of biased and irrational conduct on the part of the magistrate, all of which showed that the applicant would have reasonable grounds to suppose that he might be disadvantaged in the trial by reason of bias or prejudice actuating her.
In Masedza 1998 (1) ZLR 36 (H) the applicants were being prosecuted for a criminal offence in the magistrates court. During an adjournment of the proceedings, the applicants became aware of certain facts and, based on these facts, they applied for the recusal of the presiding magistrate. The magistrate refused the application. The trial was postponed to enable the magistrate’s decision to be taken on review. The applicants applied to the High Court for an order stopping the criminal proceedings in the magistrates court, pending a review of the decision in relation to the application for recusal. The High Court held that if in the present case the application for recusal had been well founded, the court would have been prepared to grant an order stopping the trial pending review, as no purpose would have been served by putting accused through motions of a trial that would have been abortive. If there had been a reasonable apprehension of bias then justice will have failed and it might not be attained by other means. However, it found that the grounds upon which recusal was requested did not give rise to a reasonable apprehension of bias and thus the application for stopping the criminal proceedings failed.
If a magistrate has to recuse himself during the course of the trial, the case cannot be taken over from that stage by another magistrate. The case will have to start de novo before a different magistrate. If, however, a magistrate recuses himself after he or she has convicted X, the case can be referred to a different magistrate for sentence: Moyo & Ors HB-211-87.
Effect of lodging indictment with High Court Registrar
In S v Chimhau HH-58-16 the judge pointed out that once an indictment in a criminal matter has been lodged with the Registrar of the High Court, the case concerned is deemed to be pending before the court for hearing or determination by the court. The accused, once indicted for trial, will be in the hands of the court awaiting trial. Neither the State nor defence counsel has authority to discharge or liberate the accused. If the State is unable to proceed due to the unavailability of its witnesses, its counsel should not just apply for the matter to be struck off from the court roll, even if defence counsel agrees with such a course. An explanation should be given as to why the matter should not proceed.
Securing attendance of accused
Reid-Rowland Chapter 5
If an accused person is in custody, he or she will simply be brought to court on the date which has been set down for his or her trial.
If X is out of custody, his or her attendance at his or her trial can be brought about in a number of ways.
- he or she can be summonsed to appear (s 140 CPEA);
- he or she can be warned by a magistrate to appear on a particular date, time and place to answer the charge (s 142 CPEA);
- if a peace officer believes on reasonable grounds that a magistrates court on conviction will not impose a fine more than level 3, he or she can give written notice to the person toappear in court at the date, time and place specified by the police to answer the charge and he or she will then be released: s 141 CPEA;
- he or she may, instead of paying a deposit fine assessed by the police in terms of s 132(1) CPEA, appear in court at the date, time and place specified by the police in the deposit fine form to answer the charge.
A person who fails to appear in court after receiving a deposit fine form can be treated in the same way as a person who fails to obey a summons.
If he or she fails to comply with a summons which has been properly served upon him, the prosecutor can request that a warrant for arrest be issued against him or her and when he or she is brought to court he or she can be fined up to level 3 or can be imprisoned for up to one month or both such penalties can be imposed: s 140(4) CPEA. This fine, however, must be imposed when he or she is brought before the magistrate. It cannot be imposed some time afterwards: Ncube HH-174-83; Knight NO v Van Tonder 1962 R&N 405 (SR).
In Dietrichson v Resident Provincial Magistrate Hwange & Anor HB-35-95 the applicant was remanded by a magistrate to stand trial at Binga on a certain date; he protested that he could not attend on that day, in vain. He asked a lawyer to deal with the case; his lawyer arranged with the Senior Public Prosecutor for the case to be reconsidered, then set down for another day if necessary, excusing applicant on the remand date. The SPP did not advise the court so a warrant of arrest was issued and applicant came before the court and was fined $200.
He took the decision on review, alleging gross irregularity in rejecting his explanation, and no jurisdiction to impose that fine. The magistrate claimed he acted under s 71(3) MCA, but this was only applicable when a person defies an order given in terms of that Act, whereas the remand was an order given under CPEA. The section should also only be used for disobedience or neglect to obey an order when actually appearing before the court. The fine was set aside.
The magistrate actively opposed the review application and was ordered to pay the costs personally. The Minister (second respondent) did not oppose the application, merely the claim for costs. His Ministry employed the magistrate but could have no control over him in the exercise of his judicial functions: there should be no award of costs against him.
If the person who failed to appear is out on bail, when he or she is brought before the magistrate after being arrested, the magistrate will order the forfeiture of his or her bail if the default was wilful or deliberate. (See under “Bail” above.)
It is impermissible both to fine and to order forfeiture of bail as this would amount to punishing a person twice for one offence: Sibanda (1) 1980 ZLR 413 (GD).
On how the magistrate should deal with a situation where X is present but refuses to participate in his or her trial see Mupatsi HH-40-98. Here a case had been remanded on a number of occasions. When the case came next to court, the State wanted the trial to commence. X asked for a further postponement of the case because he said he had not prepared his defence as he had been unaware that the trial was going to commence on that day. The prosecutor maintained that it had been made clear to X at the previous remand hearing that the trial would commence on the next occasion X came to court. The magistrate refused to allow a postponement, taking the view that X’s request for time to prepare was not genuine but that he was simply trying to obstruct the proceedings because he had no defence to offer. She ordered the trial to commence. X refused to participate in the proceedings. He refused to give a defence outline. During the proceedings, he would walk out of the dock and go to sit outside the courtroom. The State witnesses were nonetheless called to give evidence in the absence of X and thus without any cross-examination from X.
On review, the court found that the proceedings were entirely irregular and had to be set aside. In terms of the s 18(3) of the Constitution, a person charged with a criminal offence has a right to be present at his or her trial unless he or she behaves in such a way that the proceedings cannot continue unless he or she is excluded. Although X had behaved in a contumelious way, he had not behaved in such a way as to warrant ejecting him from the court. In any event, he had not been ejected. For the magistrate to have permitted the charade of a trial in X’s self imposed absence was improper and undignified and made a mockery of the judicial process. What the magistrate should have done was to have ordered X to be arrested and brought him before the court and if appropriate, to have punished him for contempt of court. Only if he had then disrupted proceedings, the magistrate would, after due warning, have been justified in having him removed from court and continuing with the trial in his absence.
Trial in absence of accused
Section 70(1)(g) of the Constitution provides that a person charged with a criminal offence has the right to be present when being tried. This is not an absolute right. It is not one of the rights that in terms of section 86(3) may not be limited by law. Thus reasonable restrictions may be imposed upon this right in terms of section 86(2) of the Constitution.
Section 18(3) of the previous constitution required that criminal trials be held in the presence of X unless he or she consents or so conducts himself as to render the continuation of the proceedings in his or her presence impracticable.
The CPEA provides for two exceptional circumstances in which the court may proceed with the trial in the absence of X. These two exceptions are dealt with in Chapter 10 of the Prosecutors Handbook and in Reid-Rowland’s Criminal Procedure in Zimbabwe at 16-25 – 16-27.
The first exception is provided for in s 194(1) CPEA. This applies where X so conducts himself as to make the continuation of the proceedings in his or her presence impracticable. This provision must be very sparingly invoked, especially where X is not legally represented. X must have continued to disrupt the proceedings by acting in a particularly outrageous fashion, despite being ordered to desist from such misbehaviour, before the court can resort to ordering his or her removal and exercise the discretion to continue with the trial in his or her absence. Often the outrageous behaviour will suggest mental disorder on the part of X, in which case his or her mental fitness to stand trial at all will be cast in doubt. In these circumstances, the judge must deal with the matter by ordering a psychiatric examination of X in terms of the Mental Health Act.
The second exception is provided for in s 357(1) & (2) CPEA which allows proceedings to be conducted in X’s absence if:
- he or she fails to appear on the trial day after having been properly summoned to appear;
- the offence with which he or she has been charged is a petty one for which the punishment is a fine, with imprisonment being imposable only as an alternative to the fine; and
- the court is satisfied that the ends of justice will be met if the trial is heard in the absence of X.
As regards the first of these requirements, the judge would have to see the return of service to ensure that the summons had been properly served.
Section 357(2) CPEA was relied upon in Kamanga HH-134-91. X had failed to appear in court after receiving a warning to appear in connection with a traffic ticket. The High Court said that in such a case the trial could go ahead without X. The court must, however, hear the evidence before convicting. It must be established that there is a prima facie case. The court does not have to speculate on the possible defences to the charge as X’s failure to appear will give rise to the inference that he or she has no defence to offer.
In the case of Mupatsi 1998 (1) ZLR 224 (H) the court pointed out that there are very few provisions of the law which permit a trial, or any part of it, to be conducted in the accused’s absence. One is the reception of evidence on commission in the absence of the accused in certain circumstances and with his or her consent. The second is the payment by a person admitting guilt of a deposit fine in lieu of an appearance in court. Again, this is predicated on the accused’s consent and scarcely qualifies as a trial in his or her absence. The third is the adjudication of minor offences, for which a fine only is prescribed, in the absence of the accused and with his or her consent. In this case, X, on arraignment, said he was not ready for trial and requested a two week postponement. This was refused on the grounds that there had been previous postponements and the accused had been told that the next appearance would be for trial. X denied that he had been told that this was to be his trial date, and left the dock. The magistrate ordered the trial to continue, although for most of it X was outside the court room. The magistrate convicted the accused. The High Court held that to conduct the trial in the absence of X was in these circumstances a fatal irregularity. By permitting the trial to proceed in the way it did, the magistrate allowed the proceedings to degenerate into low farce. The correct course would have been for the magistrate to have X arrested and brought before the court and then to have considered whether a sanction for contempt of court was appropriate. Only if X then conducted himself in a way practically disruptive of the proceedings would the magistrate have been justified, after due warning, in causing his removal from court and the continuation of the trial. The matter was remitted for trial de novo.
In Weinberg 1993 (2) ZLR 448 (H) the court ruled that, in a criminal case X may appear through a lawyer instead of personally in terms of s 357(1) CPEA only if the penalty prescribed is a fine or, in default of payment, imprisonment. Whenever the law permits imprisonment without the option of a fine for that offence, the section cannot be used. A conviction of a foreigner in his absence for contravening the Road Traffic Act was incompetent.
If the court proceeds with the trial where X has failed to obey the summons, it would then be inappropriate to issue a warrant for the arrest of X in terms of s 140(4) CPEA as the purpose of this section is to bring X before the court to explain his default.
The constitutionality of the provision allowing for the trial to proceed when X has failed to obey a summons is, however, open to doubt. This exception is not provided for in the constitution. See 1992 Vol. 4 No. 3 Legal Forum 29.
Committal by magistrate for trial in High Court
In Westgate Investments (Pvt) Ltd & Anor 2010 (2) ZLR 12 (H) the court stated that the purposes of committal by a magistrate, as required by s 103 CPEA are to ensure that the accused is fully apprised of the charge or charges against him before he is tried and to enable the magistrate to scrutinise the charges so as to determine, as is enjoined by s 89(1), that there appears to be sufficient reason for putting on trial the accused person brought before him. (This provision was repealed in 2006 and re-enacted in similar terms in s 65.)
Mental unfitness of accused to stand trial
In terms of s 192 CPEA, if at any time after the commencement of a criminal trial it is alleged or it appears that X is not of sound mind, the case must be dealt with under the Mental Health Act [Chapter 15:06]. If at any stage during the proceedings the behaviour of X is such as to suggest that he or she may be mentally disordered or defective, the judge must order a medical examination of X to determine whether he or she is fit to stand trial.
Section 27 of the Mental Health Act sets out what is to be done in such a case. The judge should adjourn the proceedings for up to fourteen days and direct that X be medically examined by two doctors, or by a doctor and by a psychiatric nurse practitioner if only one doctor is available.
After the judge has heard this medical evidence and any other evidence he or she thinks fit, or she will make his or her finding. If he or she considers that X would be unable to understand the nature of the proceedings or to conduct his or her defence properly because of some mental disorder or defect, he or she will issue an order directing that X be removed to a mental institution for treatment.
When X has recovered, he or she can then be made to stand trial.
There are special provisions relating to petty cases. A petty case is one in which the judicial officer considers that the charge will not merit imprisonment without the option of a fine or a fine over level 3.
Where a person is appearing before a magistrate on a petty charge the magistrate may stop the proceedings and order that —
- X submit himself to examination or treatment at a specified institution; or
- that person’s guardian, spouse or close relative make application for his or her examination and possible treatment in an institution; or
- two medical practitioners shall certify what the mental state of A is, provided that if only one medical practitioner is available, he or she may direct a psychiatric nurse practitioner to examine A and provide the second opinion required.
As regards accused persons who are deaf or dumb or both deaf and dumb, such persons may be perfectly competent mentally but, in order to stand trial, interpreters who can communicate properly with them in sign language would have to be brought in so that they can fully understand the proceedings.
In terms of s 193 CPEA, if the court is satisfied on the evidence that it is necessary for the deaf or dumb or deaf and dumb accused to be kept in custody to protect the public or X himself or herself, the court may order that he or she be kept in custody in an ordinary prison. There would have to be compelling reasons for such a drastic step to be taken. If the reason for such an order is evidence of mental disturbance then the case should be dealt with in terms of the Mental Health Act.
Children and juvenile accused
Reid-Rowland 13-2 – 13-3
A child under the age of seven may not be tried for a criminal offence as such a child is irrebuttably presumed to be incapable of committing a crime; he or she is deemed to be doli incapax, that is, incapable of forming the required criminal intention. Section 6 of the CL Code provides that “a child below the age of seven years shall be deemed to lack criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age.
A child between the ages of seven and fourteen can be prosecuted provided that the Prosecutor-General has given his or her consent to the prosecution: Eva 1967 (1) RLR 113 (GD). However, such a child is rebuttably presumed to be devoid of the capacity to commit a crime and the State must prove that the child in question was sufficiently mature to understand and that he or she did understand the wrongfulness of his or her conduct. Section 7 of the CL Code provides:
“A child over the age of seven years but below the age of fourteen years at the time of the conduct constituting the crime which he or she is alleged to have committed shall be presumed, unless the contrary is proved beyond reasonable doubt –
- to lack the capacity to form the intention necessary to commit a crime; or
- where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances.
If the State rebuts this presumption it must then prove that the essential elements of the crime were present. In the case of F 1988 (1) ZLR 327 (H), the magistrate convicted a ten-year-old boy of indecent assault on an eight-year-old girl. The magistrate failed to examine whether the child had the requisite capacity. X was prosecuted despite the fact that a probation officer had stated that both X and the complainant were too young to appreciate either the wrongfulness of what they were doing or to understand criminal proceedings. The conviction was set aside, after the review judge severely criticised both the prosecutor and the trial magistrate.
In Ncube & Ors 2011 (1) ZLR 608 (H) the court dealt with the trial of juvenile offenders. The court observed that judicial officers should always bear in mind that children in conflict with the criminal law constitute a special category of offenders for which there are specific and peculiar legislative provisions, both within our jurisdiction and other international conventions, designed to deal with such offenders. Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999). Article 17 of the Charter deals, in some useful detail, with the administration of juvenile justice where children are in conflict with the criminal law. Guidelines are given on such issues as arrest, detention, the presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law.
In our jurisdiction, the Criminal Procedure and Evidence Act (see ss 191, 195, 196, 197, 351, 352 and 353) and the Criminal Law (Codification and Reform Act) (see ss 6, 7, 8, 63 and 70) have a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact or in conflict with the criminal law. Section 191 CPEA provides that, if a child is below 16 years and is being tried in the magistrates’ court, he or she may be assisted by a natural or legal guardian, or the court may appoint another person to assist the juvenile. This practice should be extended to all juveniles, even those over 16. It is desirable for such children to be legally represented. In our civil law minors or juveniles cannot represent themselves in any proceedings but in our criminal justice system such minors are given capacity to represent themselves, as it were. This is harsh and in violation of the children's rights as enshrined in both the Charter and the Convention. Placing a juvenile, particularly a very young child, unrepresented and unassisted by its parents on trial before a magistrate is inherently repugnant. It might well be thought that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment in adversary proceedings is to expect far too much.
It is provided in s 142(5) CPEA that unless the magistrate otherwise directs, when the police arrest a person under the age of 18 in order to bring him or her to court on a criminal charge or warn him or her to appear before the court to answer a charge, they must also warn the parents or guardian, if they can be located, to attend court when the juvenile appears. It is obviously important that with juvenile offenders (especially those between seven and fourteen) the court should, wherever possible, hear from the parents or guardian as to the domestic circumstances of X and other salient matters.
In Ncube 2011 (1) ZLR 192 (H) X was aged 18 years at the time he was convicted of the rape of a 12 year old girl. At the time of the offence, however, he was aged 16. Although he did not deny the act, the case took so long to get to trial that he had turned 18 before the trial. He was, accordingly, treated as an adult for the purposes of sentence.
The court held that the decision of the prosecution to withhold the matter while biding time for the accused to attain the age of 18 and arraigning him before a magistrate thereafter in order to secure a stiffer sentence by virtue of the fact that the accused would not be entitled to a sentence of corporal punishment, was unacceptable. This conduct was extremely undesirable and brought the administration of justice to serious disrepute. The State should not be allowed to benefit from its own default, as it were, deliberately designed to gain an unfair advantage over young offenders.
Where persons are implicated in the same offence they may be tried together: s 158 CPEA. Thus where a number of persons commit a crime they can be tried together; accomplices can be tried with the principal offender; and accessories after the fact can be tried with the principal offender.
In Ismail S-52-94 it was pointed out that s 190 CPEA gives a judicial officer the discretion, at any time during the course of a trial, to separate the trials of two or more persons appearing before him or her on a joint charge. The discretion must be exercised judicially and an appeal court will interfere only if it is shown that its exercise resulted in a miscarriage of justice. A further requirement of s 190 is that the exercise of the trial court’s discretion should be pre-conditioned on an application for separation being made by either the prosecutor or X. A court does not fall into error if, without invocation, it does not mero motu separate the trials of accused persons jointly charged.
There is no rule of law that separate trials should be ordered where an essential part of one accused person’s defence amounts to an attack on a co-accused, but the matter is one which the judicial officer should take into account in determining an application for separation.
In Donaldson & Anor S-5-95, two persons were charged in separate indictments for separate crimes with contravening the same section of an Act. They were represented by the same lawyer and each admitted committing the crime at the same date and place and were tried jointly. On appeal it was held that the proceedings were a nullity. There was no provision in the Criminal Procedure and Evidence Act allowing for the joint trial of persons separately charged with different offences, even if there were some common features. The Act allows for the joint trial of any number of participants in the same offence, although committed at different times. It also allows for the joint trial of persons who have committed separate offences, provided that the accused are jointly charged and that the prosecutor informs the court that, in his or her opinion, evidence at the trial of one accused would be admissible as evidence at the trial of the other. Neither requirement was met in this case. It was held, further, that even if there had been no objection by the appellants’ legal practitioner to the joint trial, this would not have given the trial court jurisdiction, for criminal jurisdiction cannot be conferred by consent. That being so, it would not avail the State to show that there had been no prejudice to the appellants.
See also Kondoni 1982 (1) ZLR 76 (S) at 79C-D, and Machona & Ors 1982 (1) ZLR 87 (S) at 92E.
The holding of joint or mass trials of persons whose alleged offences are unconnected is totally irregular. However, joint trials are permissible for persons charged with different offences where the requirements of s 159 CPEA are satisfied. This section allows for joint trials where different accused, not acting together, commit different crimes at the same place and at about the same time and the prosecutor informs the court that there is admissible evidence which will be common to the different charges. Thus if a number of persons, not acting in concert, have all stolen maize from the complainant at around the same time, it would be appropriate to allow the joint trial of X to save the complainant from being called on numerous occasions to state that the property was stolen from him.
In Shuma & Anor 1994 (4) SA 583 (E) the court said that in deciding whether or not to order a separation of trials under s 190 CPEA, the court must exercise its discretion judicially in the promotion of the interests of justice after weighing up the prejudice likely to be caused to the applicant by a refusal to separate, against the prejudice likely to be suffered by the other accused person or the State if the trials are separated. The “interests of justice” is a wide concept, and in the context it encompasses the interests of the individual accused as well as the wider interests of society. It must be emphasised that prejudice to X is the primary consideration, but the mere fact that a joint trial lawfully deprives an accused of his or her right to call his or her co-accused as a witness does not per se constitute prejudice entitling him or her to a separation of trials. The mere possibility of prejudice is not sufficient; there must be a probability or a substantial possibility of prejudice.
Fast tracking of cases in magistrates court
In Chawira 2011 (2) ZLR 210 (H) The practice of “fast tracking” criminal trials is not is specifically provided for by that name in CPEA, but that does not mean it is an unlawful procedure. It is, in fact, a useful procedure which, if well managed, helps to contain and or reduce the courts’ backlogs of criminal cases and ensures the delivery of timeous justice. All that has to be done is to ensure that it is used in compliance with the provisions of the Act and other laws which provide for a fair trial. Under s 163 of the Act, when an accused person is arrested and is to be prosecuted in the magistrate’s court, must shall be brought to trial on the next possible court date, which means on the day when the court will be sitting next after the decision to prosecute him in the magistrate’s court will have been made. This, however, does not mean the trial has to start on that day without fail. It is desirable that it should, but regard should be had to the provisions of s 165 of the Act which provides for postponements where necessarily.
Undue haste in bringing a person to trial could constitute an irregularity. The haste could be due to the refusal of an accused person’s request for a postponement to enable him to prepare for the trial or to engage the services of a legal practitioner. It could also be due to the trial proceeding without complying with the requirements of a fair trial. However, in the absence of a valid request for the postponement of the pending trial, and if the trial complies with the requirements of a fair trial, a magistrate’s court can proceed with an accused person’s trial on the “next possible court day”, as provided by s 163. A magistrate’s failure to ask the accused if he needs the services of a legal practitioner is, on its own, not a ground for upsetting the conviction. However, if the accused applies for a postponement, the magistrate would err if he ignores the accused’s request and orders the trial to proceed in spite of such a request, as the request would have been made on the accused’s first appearance in court.
Holding cases in camera
Section 69(1) of the Constitution provides that a person charged with a criminal offence has the right to a public trial. However, this is not absolute as in terms of section 86(3) it is not a right that may not be limited by a law. In other words, this right may be restricted provided it is restricted in accordance with the provisions of section 86(2). For instance, it would be appropriate to hold a rape trial may be held in camera where the complainant is a child.
In order for justice to be seen to be done criminal proceedings are normally held in public. The public are entitled to attend criminal trials and the press is entitled to report on criminal proceedings so that the public can assure themselves that the processes of justice are fair and that persons found guilty of criminal offences are appropriately punished. It is only dictatorial regimes which make indiscriminate use of secret trials.
In Zimbabwe criminal proceedings are only held in camera in exceptional circumstances for valid and justifiable reasons. Indeed, the Constitution lays down that, subject to certain specified exceptions, all court proceedings must be held in public and the outcome of trials shall be publicly announced.
Section 3(1) of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] sets out the exact powers of the courts to order the exclusion of persons (except parties to the proceedings and their legal representatives) from the proceedings or to place restrictions on the disclosure of information pertaining to the proceedings. The grounds upon which these powers may be exercised are set out in s 3(2). Essentially, the court can use these powers if it considers this to be necessary or expedient on the grounds of defence, public safety, public order, the economic interests of the State, public morality, in the interests of the welfare of persons under the age of eighteen years, to protect witnesses who believe on reasonable grounds that harm will befall them or their families if it is known that they have given evidence, or to protect the lives of persons related to or connected with any person concerned in the proceedings. These powers can be exercised on the judge’s own initiative or on application from one of the parties to the proceedings.
Additionally, the responsible Minister has extensive powers to prohibit publicity and disclosure of information regarding different aspects of criminal trials where it is not in the public interest that there be such publicity or disclosure.
Right of accused to be legally represented at own expense
Section 70(1)(e) provides that a person accused of a crime has the right to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner. Section 70(1)(f) provides that the accused must be informed promptly of this right.
Although an accused person has a constitutional right to be legally represented at his or her own expense by a legal practitioner of his or her own choice, there are some instances where the court can order the trial to proceed without the accused having legal representation. In the case of Nyathi HB-90-03 the court stated that the trial court has a discretion, in appropriate cases, to order that the trial should proceed. Before exercising this discretion, the court must clarify whether the absence of the accused person’s legal practitioner is the fault of the accused or of the legal representative. The right to legal representation imposes an obligation to permit, not to ensure, legal representation. The accused had sufficient time to secure services of another legal practitioner or request a postponement to secure one. He was dilatory in securing legal representation. He should have requested for a postponement in order to do so.
Not every refusal of an adjournment or postponement of a trial to give the defence time to call a witness who is not available at court constitutes a gross irregularity. The question is whether in refusing the adjournment all the material facts were taken into consideration. In this case, the accused abandoned his intention to call his witness after two postponements failed to secure the attendance of the witness.
Provision of legal representation by State
Section 70(1)(e) provides that a person accused of a criminal offence has the right to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result. Section 70(1)(f) provides that the accused must be informed promptly of this right.
Previously this matter was governed by the Legal Assistance and Representation Act [Chapter 9:13]. Section 3 provided that, if it appeared to a judge that it is desirable in the interests of justice that a person who is standing trial should have legal assistance in the preparation and conduct of his or her defence and the means of that person are insufficient to enable him or her to obtain legal assistance, the judge may certify that the person ought to have such legal assistance.
Under s 5, this person would then have a legal practitioner assigned to him or her if it is practicable to procure the services of a legal practitioner and the State will pay the remuneration of the legal practitioner according to a fixed tariff.
Hitherto, these provisions have almost never been invoked in criminal cases in the magistrates courts. However, over the last few years the Supreme Court has made a series of pronouncements in which it has pointed out that in certain types of cases it may be impossible for accused to receive a fair trial if they are not legally represented. The Supreme Court has said that if it is clear to the presiding magistrate that X does not have the financial means to engage his or her own lawyer, the magistrate should certify that it is in the interests of justice that a lawyer paid for by the State be assigned to him or her. The magistrate should so certify even if X himself or herself has not made an application for free legal representation.
The cases which the Supreme Court has identified as potentially falling into the category of cases where a fair trial may not be possible in the absence of legal representation are complex cases involving such things as problematical points of statutory interpretation or of evidence or of sentencing or where long prison sentences are likely.
In Dube & Anor 1988 (2) ZLR 385 (S) at 392 the Supreme Court explained in more detail what it had in mind. Complex cases are cases such as:
- cases where the ascertainment of the facts includes difficult questions of law, which arise when issues like “possession”, “consent” or “knowledge” are involved;
- difficult cases such as the South African case where X was alleged to have evidence and the defence of alibi was difficult to establish after such a long time;
- cases where there is a need to prove “special reasons” or “special circumstances” if a minimum sentence is to be avoided;
- cases where long sentences are likely to follow conviction.
The Legal Representation and Assistance Act has been replaced by the Legal Aid Act [Chapter 7:16]. Section 10 of the Legal Aid Act provides for the provision of legal aid in certain criminal cases. Where a judge believes that it is in the interests of justice that an accused person be provided with legal aid and that person may have insufficient financial means to engage his or her own lawyer, the judge can recommend to the Director of the Legal Aid Directorate that the person should be provided with legal aid. He or she will decide whether to provide legal aid to such person after assessing that person’s financial means.
Representation of juveniles
In Ncube & Ors 2011 (1) ZLR 608 (H) the court gave detailed instruction on the approach to be adopted when dealing with juvenile offenders. The court held the learned magistrate failed to properly deal with cases involving children in conflict with the criminal law. Judicial officers should always understand and bear in mind that children in conflict with the criminal law are a special category of offenders for which there are specific and peculiar legislative provisions designed to deal with such offenders both within our jurisdiction and other international conventions. Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999). In specific terms Article 17 of the Charter deals in some useful detail with the administration of juvenile justice in relation to children in conflict with the criminal law. Guidelines are given on issues like arrest, detention, presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law. In our jurisdiction the Criminal Procedure and Evidence Act. See ss 191, 195, 196, 197, 351, 352 and 353 and the Criminal Law (Codification and Reform Act) (See ss 6, 7, 8, 63 and 70) have a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact and in conflict with the criminal law.
The court held, further, that section 191 CPEA provides that if a child is below 16 years and is being tried in the magistrates court he/she may be assisted by a natural or legal guardian or the court may appoint another person to assist the juvenile. In both matters dealt with by the trial magistrate the natural or legal guardians of the juveniles were not even present during the proceedings. One may argue that in casu the juveniles were 16 years or above but this practice should be extended to all juveniles. In fact it is desirable for such children to be legally represented. In our civil law minors or juveniles cannot represent themselves in any proceedings but in our criminal justice system such minors are given capacity to represent themselves as it were. This is harsh and in violation of the children’s rights as enshrined in both the Charter and the Convention. Placing a juvenile, particularly a very young child, unrepresented and unassisted by its parents on trial before a magistrate is inherently repugnant. The same juvenile would be regarded in civil court as incapable of enforcing or defending its rights. What is different is that the criminal system of justice affords the unassisted minor the capacity to defend himself. It might well be thought that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment in adversary proceedings is to expect far too much.
The court held, further, that the issue of the age of a juvenile offender is a very crucial factor to which the court should apply its mind in all criminal proceedings. In fact, the inquiry into the juvenile offender’s age should start at the time of arrest if we are to properly protect the rights of children in conflict with the criminal law. Where a child is put on trial an inquiry into the child’s age must be made because from that inquiry many other important considerations flow. If the child is under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next question is whether as a matter of policy such a young person should be subjected to the might of the criminal justice system.
Non-attendance of witnesses
If a witness has been served with a subpoena to appear in the court named at the particular date and time and he or she fails to appear, he or she can be punished under s 237(3) CPEA. (The word subpoena in fact means “under punishment”).
Acting under this section, the prosecutor will hand the magistrate the return of service or he or she may prove service by evidence on oath. He or she will then apply for a warrant of arrest. On the arrest of the witness, the court can inquire summarily into the reasons for his or her non-appearance and may fine him or her or imprison him or her if he or she has no valid reason for his or her default.
A witness can also be served with a particular type of subpoena, namely a subpoena duces tecum which requires the witness to produce a specified document or thing. If the witness disobeys this subpoena he or she can be dealt with under s 233 CPEA.
Also, the court may warn a witness to attend. Failure to obey the warning may be treated as contempt of court.
Compellability of witness when privilege claimed
In Mutasa v Nduna NO & Ors HH-113-09 a Government Minister declined to testify in a criminal to testify claiming that that he could not be compelled to divulge matters that were privileged for reasons of public policy and public interest. The court held on the facts that there could be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest and the claim for privilege had to be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by s 18(3) of the Constitution and, in particular, the right "to obtain the attendance and carry out the examination of witnesses to testify on his behalf".
Start of trial
At the time the judge enters the court, the orderly will call for silence in the courtroom and all people will be expected to stand. The legal practitioners will bow to the judge before he or she is seated.
At the start of the trial, X will be required to be in the dock. However, if a company is being prosecuted, a representative of the company who is not being charged personally as well does not have to sit in the dock.
When witnesses give testimony, the remaining witnesses who have not yet testified will be expected to wait outside the courtroom at a place where it is not possible for them to hear the testimony of the witnesses currently testifying.
Application for separation of trials of co-accused
In Kachipare 1998 (2) ZLR 271 (S), X and Y were jointly charged with the murder of a newly born child. On appeal, it was argued that the trial judge should have ordered a separation of trials. Held, that because neither the prosecutor nor counsel for the appellant applied for a separation of trials, the judge could not order a separation mero motu. The power to order a separation is pre-conditioned by the making of an application.
In Ngwenya & Anor v Ndebele NO & Anor 2010 (1) ZLR 457 (H) the court pointed out that a separation of trials may not be ordered by the court mero motu; an application must be made by the prosecutor or one of the accused. If no such application is made, it is not an irregularity if the court does not, mero motu, order a separation and there would be no grounds for review arising from the failure to order a separation. If an application is made, the court has a discretion as to whether to order separation of trials. There is no rule of law that separate trials should be ordered where an essential part of one accused person's defence amounts to an attack on a co-accused; this would be a matter is one which the court should take into account in determining whether to order separate trials or not. It is not correct to say that, where co-accused persons incriminate each other, even where there is no desire to use the evidence of any of them against the other, a separation of trials should be ordered.
Persons brought before wrong court
This is provided for in s 164 CPEA. If, in the magistrates court, a case is brought before a court and it appears that the case is not properly triable in this court, X is not to be acquitted. If X requests that the case be transferred, the magistrate may transfer the case. If X does not request transfer of the case, the magistrate may proceed with the trial as if the magistrate originally had jurisdiction. To try X however, X still had the right to plead to the jurisdiction of the court.
The trial starts off with the reading of the charge. Before the charge is put to X, the judge should ensure that the charge is clearly and correctly formulated and is properly laid, either under common law or under statute.
The offence must be properly described and adequately particularised. Where the charge is a statutory one, the judge must ensure that the correct section of the Act or Statutory Instrument has been cited, and that the particulars correspond with the provision itself: Chamurandi HH-182-86; Vhere HH-211-86; Zvinyenge & Ors 1987 (2) ZLR 42 (S).
It was pointed out in Siphambili 1995 (2) ZLR 337 (S) that if the indictment is deficient in particularity that deficiency would not necessarily be fatal. The test was whether it would prejudice the accused. Unless time is of the essence of the charge, it is sufficient if the day or period alleged in the charge falls within a period of three months before or after the commission of the offence: s 173 CPEA. The court decided that any embarrassment which might have resulted from the inaccuracy in the charge should have been raised before plea, as a request for further particulars or as an exception. If the defence does not object before plea to the lack of particularity in a charge which discloses an offence, then the defence cannot rely on the defectiveness of the charge at the end of the trial: s 170 CPEA.
It was made clear in Sabawu & Anor 1999 (2) ZLR 314 (H) that it is the prosecutor's right to determine which charges to prefer and to ensure that the accused is charged with the correct offence.
Although this is not mandatory, where X is unrepresented and the statutory offence with which he or she is charged is made subject to exemptions or is not committed if there is a lawful excuse, it is desirable that the charge be formulated so as to make it clear that the offence is not committed if it falls under an exemption or there is a lawful excuse. This makes it clear to X that, although he or she may have done the act prohibited, he or she will escape conviction if he or she has a lawful excuse or falls under an exemption: Janyure 1988 (2) ZLR 470 (S) at 474.
The charge of theft on the basis of a general deficiency is authorised by the provisions of s 148 CPEA. The object of the section is to make things easier for the State when it does not know what has happened to the money. All it knows is that there is less money in the account than there should be, and that X was in charge of the account: Mboma S-28-92.
Withdrawal of charge by prosecutor
In Kurotwi & Ors (1) 2011 (1) ZLR 185 (H) ruled that s 76(4)(c) which applied to all courts, clothes the Attorney-General with an unfettered absolute discretion to withdraw criminal proceedings he has instituted at any stage of the proceedings. Once the Attorney-General has decided to exercise his discretion under that section, no person or authority, including the courts, can question his decision in this respect. It the prosecutor decides to withdraw the charge, the court must accept that decision. It does not matter whether or not the withdrawal is before or after the plea.
Amendment of charge by prosecutor
In Kurotwi & Anor (2) 2011 (1) ZLR 208 (H) the accused were indicted for trial before the High Court on a charge of fraud together with three others. The charges against the other three were withdrawn before plea. The accused were then served with a fresh charge and summary of the state case, different from those served on them by the magistrate at the time they were indicted to the High Court for trial. They objected to pleading to the fresh charge, arguing that it was improper and irregular for the prosecutor to prefer charges different from those upon which they were committed for trial without first seeking the leave of the court to do so. They argued that they had prepared their defence on the basis of the original charge, and it was therefore prejudicial for them to plead to the fresh charge which was based on a different set of facts, although the charge remains fraud. It was further argued that the original charge was framed in such a way as to omit an essential element which had since been incorporated into the fresh charge. Finally, it was argued that after the indictment it was incompetent for the state to unilaterally amend, substitute or vary the charge and summary of the state case without the leave of the court at a time when the trial was already pending before this court. The court held that in terms of s 202 CPEA where a need arises to amend the charge in the course of a trial, it is only the court which can authorize the amendment, after considering the question of prejudice. Here, the amendment was unilaterally made by the state before plea but after committal for trial in terms of s 168 of the Act. Once the accused had been indicted, the High Court was seized with the matter and all procedures relating to the trial of the accused were firmly under the direction and control of the court. The accused is entitled as of right to demand that he be tried on that charge. The state is not at large at that stage to alter, amend or substitute the charge without the court’s permission. While, in terms of s 320 of the Act, the Attorney-General has a right to withdraw a charge before plea and prefer new charges against an accused person, the condition precedent is that he must first withdraw the original charges against the accused before he can proceed to prefer fresh charges against the accused.
In the present case, a new charge could not be brought because the original one had not been withdrawn. If the prosecutor wants to amend the charge, then he must apply to the court and the court will make a determination. If he wants to prefer new charges against the accused, then he must first withdraw the original charge before plea. It was up to the prosecutor which way to proceed.
In Kurotwi & Anor (3) 2011 (1) ZLR 251 (H) the accused were committed for trial along with three others, the charges against who had been withdrawn before plea. The State intended to use the three others as State witnesses against the accused and applied to amend the original charge before plea to incorporate this development.
The court held that the effect of s 137 CPEA is that, once the High Court is seized with the matter pending before it, all procedures relating to the trial of the accused are firmly under the direction and control of the court. Accordingly, although the State is dominus litis, it would have to apply for an order for the withdrawal of charges against the accused's co-accused before plea. It would be grossly irregular for the State to simply drop charges against the accused's co-accused without first obtaining a court order to that effect. The situation cannot be different when it comes to the amendment of the charge before plea. Once an accused person has been served with an indictment and committed to the High Court for trial he is entitled, as of right, to demand that he be tried on that charge. The State is not at large at that stage to alter, amend or substitute the charge without the court's permission.
Generally speaking a party is entitled to make an amendment at any time before judgment, provided there is no prejudice to the other party. Here there was no prejudice to the accused which could not be cured by an adjournment to enable them to prepare their defence in light of the intended application. Sections 9 and 320(3) of the Act would seem, with respect, to give the Attorney-General, or the prosecutor acting on his behalf, the absolute right to withdraw a charge at any time before the accused has pleaded, and to lodge a fresh indictment or charge or to issue and serve a fresh summons for hearing before the same or any other competent court.
In Westgate Investments (Pvt) Ltd 2010 (2) ZLR 12 (H) the court ruled that where X has been committed for trial on a particular charge this charge can be amended and an alternate charge can be included provided that X is not prejudiced in his defence. The court referred in this regard to s 103 CPEA (This provision was repealed in 2006 and re-enacted in similar terms in s 65.)
Amendment by the court
In Shand 1994 (2) ZLR 99 (S) it was pointed out that in terms of s 202(1) CPEA, a court may, in certain circumstances, amend a charge. This provision only allows the court to make corrections to the existing charge and it does not allow the court to substitute a totally different charge. In any event in the present case there was a possibility of prejudicing the appellant if the Appeal Court allowed the substitution of a new charge.
Alteration of charge by court
The general rule is that the prosecutor is the dominus litis and has the prerogative to prefer charges against the accused. Sabawu & Anor 1999 (2) ZLR 314 (H).
However, this rule is not absolute. In the case of Thebe HB-16-06 the judge pointed out that while the prosecutor is dominus litis, this rule is not absolute. The trial court, as a trier of facts whose main object is to do justice between man and man, therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it. It is, therefore, within its power to prevent the State from proceeding on a lesser charge where justice clearly requires a more serious one.
It is not in the interests of justice that a person should be charged with a lesser offence when the admitted facts show that he or she is guilty of a more serious charge. In such an event, the trial court should at least query why X is being charged only with the less serious charge. Thus if the State allegations clearly suggest that X has committed the crime of assault with intent to do grievous bodily harm but the State has brought only a charge of common assault against X, the magistrate should question the prosecutor on why the lesser charge has been preferred. Similarly, the magistrate should query why a person has only been charged with contravening s 45(1) of the Road Traffic Act [Chapter 13:11] if the evidence discloses a contravention of s 46(1) of this Act: Chidodo & Anor 1988 (1) ZLR 299 (H).
Reid-Rowland10-14 – 10-13
As a matter of practice, the most serious charge is usually set out first. This, however, is not a legal requirement. There can be a number of alternate charges. All charges and alternate charges must be read out to X before he or she is asked to plead, rather than each charge being read out and him or her being asked to plead to each in turn.
In Nyamande v Minister of Home Affairs & Ors 2011 (1) ZLR 141 (H) the court pointed out that where it is intended to charge X with an alternate charge, that alternate charge ought to be charged together with the main charge so that X can prepare his defence in respect of both charges. Failure to do this violates the audi alteram partem rule. Unless an alternate charge has been brought, it would not be competent for a court or reviewing authority to record a conviction on a charge which that court or authority considers more appropriate, unless the essential elements of the substituted charge are encompassed within the essential elements of the offence actually charged.
However, this judgment does not point out that it is also competent for a court to convict of an offence other than that charged if the charge is one for which a competent verdict is provided by the Fourth Schedule to CL Code.
Exception to charge
The procedure when there is an exception to the charge is set out in s 171 CPEA. It will usually be X’s lawyer who will except to the charge on behalf of his or her client. If the exception is made before plea, the court must deal with this matter first before requiring X to plead: s 171(1) CPEA. This applies both to an exception that the charge does not disclose an offence, and that the charge does not disclose reasonably sufficient particulars to inform X of the nature of the charge against him or her as required by s 146 CPEA.
Section 178(1) of the CPEA Act gives an accused person the right to apply to the court, before pleading, to quash the charge on the ground that it is calculated to prejudice or embarrass him in his or her defence. Section 180(1) of the Act gives the accused person who considers that a charge is framed in vague language or that the particulars of the offence are not disclosed in a manner that enables him to answer the charge to except to it on the ground that it does not disclose any offence cognizable by the court. The magistrate is obliged to hear the exception and determine whether it is well founded. If the exception is well founded the magistrate has the power to dismiss the charge. See S v Mwonzora CC-17-16
If the exception is dismissed X will then be asked to plead.
If X pleads and excepts together, the court has the discretion whether to dispose of the plea or the exception first: s 171(2) CPEA.
Charge lacking in particularity
It was pointed out in Siphambili 1995 (2) ZLR 337 (S) that if the indictment is deficient in particularity that deficiency would not necessarily be fatal. The test was whether it would prejudice the accused. Unless time is of the essence of the charge, it is sufficient if the day or period alleged in the charge falls within a period of three months before or after the commission of the offence. The court decided that any embarrassment which might have resulted from the inaccuracy in the charge should have been raised before plea, as a request for further particulars or as an exception. If the defence does not object before plea to the lack of particularity in a charge which discloses an offence, it cannot rely on the defectiveness of the charge at the end of the trial.
Splitting of charges
Reid-Rowland 10-29 – 10-30
It is unfair that X be charged with two or more separate crimes in circumstances where he or she should have been charged with one crime only because the conduct really only constitutes one criminal offence.
In Zacharia 2002 (1) ZLR 48 (H) it was held that there are two tests for whether there has been an improper splitting of charges, the “single intent” or “continuous transaction” test and the “same evidence” or “dominant intent” test. The latter is related to the intention of the accused person as he or she performs several acts which are logically and intrinsically connected to the one offence which he or she then commits. The concern whether the criminal conduct is in reality a single conviction is aimed at avoiding prejudice to the accused where the duplication of convictions arises. If no prejudice is occasioned to the accused, then the question whether or not there has been a duplication of convictions becomes one of little or no consequence. The prejudice to the accused may be avoided by treating all the separate counts as one for the purposes of sentence.
Simply because criminal acts form part of one related transaction does not mean that separate crimes have not been committed and that there has been an improper splitting of charges. There will, however, have been an improper splitting of charges if either:
- a person commits two acts, each of which standing alone would be criminal but does so with a single intent and both acts are necessary to carry out that intention; or
- where the same evidence which is essential to prove one criminal act is also essential to prove another criminal act.
In both these instances, X should be convicted of only one crime: Peterson & Ors 1970 RLR 49; Chinemo 1985 (1) ZLR 32 (H).
Where the charging of more than one offence would constitute improper splitting, the State should charge the offence which represents the dominant intention of X in engaging in that conduct: Jambani 1982 (2) ZLR 213 (H).
In Mupatsi 2010 (2) ZLR 529 (H) the court stated that the rule against splitting of charges (which could more aptly be described as a rule of practice against the duplication of convictions) was designed to prevent a duplication of convictions in a trial where the whole of the criminal conduct imputed to the accused constitutes in substance only one offence which could have been properly embodied in one all-embracing charge and where such duplication results in prejudice to the accused. Accordingly, where the accused, in pursuance of a dominant intention, commits a number of offences, the proper thing to do is to charge him with only that offence which was his dominant purpose. This does not mean that the test of "dominant purpose" is the only one to be applied; in some situations it may still be appropriate to charge the accused with more than one offence.
In Chikukwa HH-813-16 the judge pointed out that s 145 CPEA provides for what may be done when it is not clear which of several offences can be constituted by the facts proved. In that event, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time; or the accused may be charged in the alternative with having committed some or one of those offences. The section has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. It allows great latitude to the State to charge various offences, whether separately or in the alternative, arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. The objection to a splitting of charges may well have become academic in view of the provisions of the section.
One of the reasons for the rule against splitting of charges is that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct, in that the accused would then have to be sentenced on each charge. This can be cured by taking the counts as one for sentence.
The test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused. The application of the practice and tests should not lead to fettering the authority of the Prosecutor General to bring to court against the accused the charges which, on the evidence available, the accused should answer to.
Cases in which court found that there was splitting
In Mhandu 1985 (1) ZLR 228 (S), it was held to be an improper splitting to charge X with three separate offences of “statutory rape” where he had had sexual intercourse with an under-age girl on three separate occasions during one month.
In Matimba 1989 (3) ZLR 173 (S), the Supreme Court ruled that it constituted an improper splitting to charge breaches of the various duties under s 61 of the Road Traffic Act, 1976 (failing to stop, failing to attend to injured persons, and so on) as separate offences.
In Tugwete HH-672-87, it was pointed out that where a person drives a motor vehicle without footbrakes and a handbrake he or she commits a single offence not two offences.
Cases in which court found there was no splitting
In Peterson & Ors 1970 RLR 49, Xs stole a car and later abandoned it but burnt it to prevent the discovery of any finger prints in the car. Xs were correctly convicted of both theft and malicious injury to property because, although the offences were related and formed part of one continuous transaction, there was not a single intent and the evidence of theft was not essential to prove malicious injury to property. (The related nature of these crimes could, nonetheless, be taken into account for the purposes of sentence.)
In Maniko & Anor HH-44-91, the reviewing judge decided that in neither of two cases had there been improper splitting. In the first, a person had properly been convicted of two counts of assault where he had assaulted one person and had then assaulted another who had tried to intervene. In the second, an accused had properly been convicted of two counts of stock theft where X had stolen cattle from two people at the same place but an hour apart.
Other Case Examples:
Frank 1968 (1) RLR 257 (A) (assault and malicious injury to property);
Attorney-General v Jakubec 1979 RLR 267 (A) (excessive blood alcohol and negligent driving);
Lamont 1977 (1) RLR 112 (A) (incitement and substantive offence incited);
P & Ors 1976 (1) RLR 142 (GD) (possession of arms of war and act of terrorism);
Tebie & Anor 1965 RLR 198 (GD) (robbery and theft);
Simon 1980 ZLR 162 (GD) (robbery and impersonation of policeman).
Withdrawal of charge before plea
If the State withdraws the charge before plea, no verdict is entered and the State is at liberty to bring X back to court at a later date. The State may decide to withdraw the charge before plea for a variety of reasons such as illness of a vital witness or delay in securing important evidence.
The defence lawyer may try to insist that the plea be put to X before the charge is withdrawn. If, however, the prosecutor has made a firm decision that withdrawal will be before plea, the court has no right to order that the charge be put and that a plea be taken before the withdrawal of the charge. The decision as to whether the withdrawal will be before or after the plea lies solely with the State.
Failure to bring to trial within six months of committal
Section 69(1) of the Constitution provides that every person charged with a criminal offence is entitled to a fair and public trial within a reasonable time before an independent and public trial.
Section 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be “dismissed”. This provision is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Attorney-General ensures that trials of accused persons committed for trial are expeditiously conducted.” In Mukuze & Anor v A-G (2) HH-17-05. the court decided that the six-month period could be interrupted (a) if X is through circumstances beyond the control of the Attorney General not available to stand trial or (b) if the Attorney-General has in terms of s 108 ordered a further examination to be taken.
Section 50(6) of the Constitution provides that a person who is detained pending trial for an alleged offence and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions to ensure that after being released they—
- attend trial;
- do not interfere with the evidence to be given at the trial; and
- do not commit any other offence before the trial begins.
It is the responsibility of the magistrate hearing applications for initial and further remands to ensure that the Constitutional provisions are observed. In terms of s 18(9) every person is entitled to a fair trial within a reasonable time.
It is the duty of the remand court to decline to grant requests from the State for further remands when unreasonably long periods of time have elapsed since X was first charged. It must ensure that the State proceeds to trial within a reasonable time: Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S). The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.
Even where X is out of custody pending trial, the State is nonetheless obliged to ensure that the case is brought for trial within a reasonable time. Where X is in custody it is obviously even more important that the case be brought for trial within a reasonable time. The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.
Not only at the first remand but at each subsequent remand the remanding magistrate must note in the record why X is being remanded.
The court has the primary responsibility for the protection of the right of the unrepresented accused to a speedy trial because an unrepresented accused who is unfamiliar with the criminal process will be likely to be unaware of his rights to be tried within a reasonable period. The court before whom the unrepresented accused is brought must take the initiative to ensure that the constitutional right of X to a speedy trial is not violated. It should not wait for X to raise a complaint of a violation of his constitutional right and to ask the court to deny any further remands. The court should probe the reasons for any apparently undue delays and, where no satisfactory explanations are forthcoming, it should take appropriate action. At very least, it would be expected that the court would inform X of his rights. But the informing of such an accused of his rights should not be seen as been a sufficient safeguarding of X’s rights. Even after being given such information, he may still be ignorant about what remedies he has and how he should go about raising this issue. The undefended accused may still lack the ability to assert those rights. He may be inarticulate, nervous and overawed when he appears in court. If he is in custody, he may be worried about the consequences of raising complaints about undue delays in bringing the case to trial. The court has the power to require explanations for the delays from the prosecutor which X is not. See Tao HH-182-96; Msindo HH-63-97; Chakwinya 1997 (1) ZLR 109 (H).
The remand court therefore should not go on granting requests for further remands when an unreasonably long period of time has elapsed since X was first charged. It should seek to ensure that the State proceeds to trial within a reasonable period of time. Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S).
In Sibanda HH-78-94, there was a delay of almost 7 years before bringing X to trial: his lawyer asked the magistrate for a permanent stay of prosecution; this was refused; he asked for the decision to be reviewed by a Judge of the High Court before the trial proceeded on the grounds:
- that the magistrate had no jurisdiction to decide the issue; or
- that he should have found that X’s constitutional rights had been violated.
It was held that the High Court will only review criminal proceedings before they are completed in exceptional circumstances, which must be set out. The matter was therefore not properly before it. A magistrates court can decide on an application for a stay of prosecution itself unless either party asks it to refer the matter to the Supreme Court or if it considers the request for referral frivolous or vexatious. As it had not been asked to refer this case, its decision was competent. The lawyer could have asked the magistrates court to grant a stay of prosecution or alternatively to refer the matter to the Supreme Court. It was still open to him at the resumed hearing in the magistrates court to request that the matter be referred; as the case involved such a long delay, it could hardly be said to be frivolous or vexatious - the court would be obliged to refer it.
In Matapo & Ors 2010 (2) ZLR 120 (H) the applicants, having been arrested in May 2007, were committed for trial in June 2008. The matter was not set down for trial in spite of requests by the defence for various documents. In August 2008 an application relating to the constitutionality of the charges was heard; it was dismissed in November 2008 and the Supreme Court, to which the issue was then referred, rejected the constitutional application in December 2009. In March 2010 the applicants were notified of a trial date in June 2010.
They brought an application for the dismissal of the case against them, arguing that, in terms of s 160(2) CPEA, they were entitled to have the case dismissed as they had not been brought to trial within 6 months of the date of committal. It was argued that the only time they had not been available for trial was while the constitutional issue was pending. The Attorney-General argued that the calculation of the period within which the accused should have been brought to trial should take into account the times the High Court was on vacation. It was also contended that the six months that entitle a dismissal of the case must run uninterrupted.
The court held that the prerogative of setting down a criminal matter for trial is that of the Attorney-General. The only time an accused person may be granted an earlier date is upon application before the court. Section 160(2) does not provide for the reckoning of the six months period, so the meaning given in the Interpretation Act must be relied on, that is, a “calendar month”. “Calendar month” has two meanings, the second of which is the space of time from any date in any month to the corresponding date in the next. That was the appropriate meaning in the context of s 160(2).
The only way the period could be interrupted would be if the accused were unavailable for trial. When an accused person is committed for trial he automatically becomes available for trial. The only time he is not available for trial would be for example, if he is too ill or, as here, when the trial process is interrupted by some other process like an application for referral of a constitutional issue to the Supreme Court. When the applicants were committed for trial in June 2008, the six month period within which they should have been brought to trial immediately commenced to run.
Although between that date and the date the constitutional application was first heard the matter could not be tried because the defence had not been furnished with certain documents, that period should be counted as part of the six months within which the applicants should have been tried. Further, the fact that the High Court was on vacation on two occasions did not constitute a circumstance beyond the control of the Attorney-General. This was so because it could not be said the applicants were not available to stand trial.
In Dube & Anor 1989 (3) ZLR 245 (S) the court said that for justice to be seen to be done, the machinery of justice, as it grinds through police stations, the Attorney-General’s Department and the courts of justice, must move expeditiously. In this case, where the accused spent over 4 years out of prison awaiting trial and the hearing of their appeals, it was held not to be in the interests of justice to send them to prison.
In Ruzario 1990 (1) ZLR 359 (S) X a police officer had been convicted of culpable homicide and sentenced to four months imprisonment with labour for killing three persons while driving negligently and under the influence of alcohol. There had been a delay of 4 years in bringing the case for trial. The appeal court declined to interfere with the prison sentence. Once it was apparent that the State was dragging its feet he ought to have taken appropriate steps to have asserted his right to have the matter dealt with within a reasonable period of time. He had not done so. In any event it was evident from the magistrate’s judgment that he took into account the four year delay in his assessment of punishment and were it not for that feature, would have ordered the appellant to serve a far longer period of imprisonment. The appeal was dismissed.
In the case of Chakwinya 1997 (1) ZLR 109 (H) the court held that every person, deserving or otherwise, was entitled to the protection of s 18 of the Constitution, which includes the right to a fair trial within a reasonable time. The delay in this case had been extreme and the reason for it was inexcusable. The prejudice to the accused was such that had he been convicted and sentenced when he should have been, he would more than likely have been released by now. To impose the sentence that would normally be expected would be unconscionably prejudicial. It further held that it would be most inappropriate to hold against an unrepresented accused a failure to take assiduous steps to enforce his freedom. The accused was an unemployed communal land dweller who had never been advised of his rights. He was at the mercy of the system, and the system failed him. Elementary administrative checks would have revealed the accused’s plight.
In Kundishora 1990 (2) ZLR 245 (S) X was sentenced a prison term for fraud He appealed. The trial took place 3½ years after the discovery of the offence and the appeal was heard 10 months later. Dismissing the appeal against conviction and sentence, the court held that the delay in this matter should not be regarded as a mitigating factor in sentence because X did nothing to assert his right to be tried within a reasonable period and part of the delay was due to the appellant putting up a thoroughly dishonest defence, which had no prospects of success.
See also 1996 Vol. 8 No. 1 Legal Forum 35 and Kumusana S-110-89; Makoni S-9-90; Dube & Anor 1989 (3) ZLR 245 (S); Ruzario 1990 (1) ZLR 359 (S); Kundishora 1990 (2) ZLR 30 (S); Mlambo S-221-91.
Reid-Rowland 16-14 – 16-25
Types of plea
At the start of the trial X is asked what his or her plea is to the charge. It should be noted that even where X is legally represented X must personally plead to the charge; his or her lawyer cannot enter a plea on his or her behalf.
If he or she pleads guilty, after checking that X is genuinely and correctly admitting the charge, he or she can then be found guilty and sentenced.
In murder cases the court will always enter a plea, even if the accused pleads guilty. The State will then be required to lead evidence to establish the guilt of the accused. See Nangani 1982 (1) ZLR 150 (S) at 154 B and s 271(1) CPEA.
If X pleads not guilty, the case then goes for trial.
If X refuses to plead at all or refuses to answer directly and unequivocally to the charge, a plea of not guilty should be entered.
The plea may be a limited one. For example, if he or she is charged with assault with intent to commit grievous bodily harm, he or she may have been advised by his or her lawyer to plead not guilty to this charge but guilty to the lesser charge of common assault. A plea of not guilty to the actual charge must be entered. X may also plead guilty in a qualified way. If charged with assault with intent to do grievous bodily harm, he or she may plead guilty but may say that he or she committed the crime because he or she was very drunk or had been badly provoked by the complainant. A plea of not guilty must be entered in this instance and the matter should proceed to trial to determine whether X in fact had the requisite intention to inflict grievous bodily harm upon the victim despite the presence of intoxication or provocation.
Guilty pleas from undefended accused
With crimes not meriting imprisonment or a fine over level 3 (petty crimes) the court can convict on a guilty plea and impose a sentence other than imprisonment or a fine in excess of level 3: s 271(2)(a) CPEA.
This provision is only appropriate for trivial cases. It cannot be used in any case where imprisonment may be imposed even if the period of imprisonment is then wholly suspended: Honde & Ors HB-27-91. There is seldom, if ever, any justification for proceeding under this section if the charge against X is assault with intent to cause grievous bodily harm: Kendai HH-269-82.
More Serious Crimes
Testing the plea
With crimes meriting imprisonment or a whipping or a fine over level 3 (more serious crimes) there are stringent safeguards which have to be applied before a guilty plea is accepted by the court from an unrepresented accused. Before convicting a person who is not legally represented on a guilty plea the court must satisfy itself that X fully understands and admits the charge and all its essential elements: Mteiswa 1976 (1) RLR 314 (GD).
In order to so satisfy itself, the court must first carefully explain the charge and its essential elements and inform X of the acts or omissions upon which the charge is based or, if these are not clear from the charge sheet, it must require the prosecutor to state upon what acts or omissions the charge is based: s 271(2)(b) CPEA; Choma 1990 (2) ZLR 33 (H). During this inquiry, the court may call upon the prosecutor to present evidence on any aspect of the charge.
In Chirodzero HH-14-88, the court stressed the need for extreme care to be exercised in this situation. It emphasised that magistrates must constantly bear in mind the dangers inherent in convicting persons upon guilty pleas. The provision provides for an extraordinary procedure for disposing of criminal trials after a truncated form of trial. Magistrates must do all in their power to ensure that this truncated procedure does not result in injustice. They must be satisfied that the admission of guilt is genuine, unqualified and unequivocal before acting on it. They must be satisfied that X is admitting the facts alleged and the charge and all its essential elements. They must also be satisfied that X is guilty in fact and in law.
Each element of the offence must be examined in turn and the replies of X in respect of each element should be recorded. The procedure should not be short-circuited by rolling the elements of the offence together. They must be taken individually.
In Matsetu HH-13-08 the court stressed the need to ensure that accused was not admitting things he does not understand and the need to ensure accused is admitting or denying relevant facts.
The court should be careful not to regard every fact as having been proved just because it is admitted. If, for instance, X admits to being in possession of a prohibited item, the court should establish just what it is he or she has admitted to, as possession is a difficult legal concept. The court must ascertain whether there was, indeed, possession in the legal sense.
When exploring whether X is admitting to each essential element, the court should not restrict itself to eliciting bald “yes” or “no” answers and then be satisfied with such bald answers. The questioning of X must be done in such a way as to elicit full information. To decide whether the “breaking” element of housebreaking is being admitted the judge might ask, “Did you break into the premises and enter them as alleged?” to which X may simply reply “yes”. This does not, however, elicit proper details so it is far better to ask whether he or she entered the premises and, if he or she did, to ask how he or she effected entry.
The question, “Why did you do this?” should always be put to see whether there is some defence which may be open to X. If X does have any defence, the defence will most likely come out in response to this question. If no defence emerges, the response to this question will be likely nonetheless to reveal the motive and this may have a bearing on sentence.
In Mubvimbi & Ors 2010 (2) ZLR 251 (H) the court pointed out that s 271(2)(6) CPEA requires that a magistrate be satisfied before he can convicted accused in proceedings under that section, that the accused understands the charge and the essential elements of the of the offence and that he admits the elements of the offence and the acts or omissions on which the charge is based as stated in the charge or by the prosecution. This satisfaction must come from a careful verification of the accused’s plea of guilty by confirming it by questioning him on his attitude to the essential elements of the crime charged and ensuring that he has no defence to offer to offer to the crime charged. It is not possible for a magistrate to be so satisfied if he asks general questions to many jointly charged accused persons whose answers can only be “yes”or “no” because of the manner in which the questions will have been put to them. 9 accused were convicted of culpable homicide.
D has died from a head injury as a result of assaults, with clenched fists, open hands, booted feet and switches, perpetrated on him at 2 different places, at different times, by two different groups. All accused had pleaded guilty. It was not alleged, however, by the State that the accused had acted with common purpose nor were they so asked by the regional magistrate after they had pleaded guilty. The court held that despite their guilty pleas there was insufficient evidence to justify their convictions. It could not be said that the conduct of each caused the death, as it was not alleged and accepted that they were acting in common purpose. Where several accused are charged jointly with culpable homicide, there should be a diligent inquiry during the canvassing of the essential elements with each of the accused, one at a time, to establish which accused used which weapon, where he or she struck D’s body and his or her culpability. Each should be questioned to reveal exactly what it was that he was admitting. The purpose of such questioning is not to test the accused person’s credibility or to trap him into further admissions, but simply to determine precisely what it is that he is admitting.
In Sakatare HH-105-13 the court stressed that before an accused person can be found guilty on his own plea of guilty the court must satisfy itself that his plea of guilty is an unequivocal admission of his guilt. The purpose of canvassing the essential elements of the offence is for the court to satisfy itself that the accused is tendering a genuine plea of guilty from an informed position of his liability at law. Where the accused person pleads guilty but goes on to deny an essential element of the offence charged, the court is duty bound to alter the plea to one of not guilty and proceed to trial in the normal way.
A youth of 17 was charged with unlawful sexual intercourse with a girl under the age of 16 in contravention of s 70(1) CL Code. He pleaded guilty, but in answer to questions from the magistrate, denied being aware that the girl was aged under 16 years. The court pointed out that an act does not constitute guilt unless done with a guilty frame of mind. Here, it was not enough for the accused to admit that he had sexual intercourse with a girl below the age of consent. He had also to admit the mental aspect of the offence, namely, that he intentionally had sexual intercourse with the girl well knowing that she was below the age of 16 years. Once he had stated that he did not appreciate that the complainant was below the age of 16 years at the material time, he was proffering a valid defence to the charge. At that juncture, the trial magistrate was obliged to alter the plea to one of not guilty, instead of embarking on a lengthy cross-examination of the accused, apparently calculated to extort a confession from him so as to avoid the rigours of a fully-fledged trial. It is not the duty of the presiding magistrate to browbeat the accused into submission in order to convict the accused on his own plea of guilty.
In Matsetu HH-84-13 X pleaded guilty to a charge of culpable homicide arising out of traffic accident which occurred at night. The magistrate then proceeded in terms of 271(2)(b) CPEA 9:07] to question Xto canvass the essential elements of the offence. In answer to one question, X said he did not mean to cause the accident. The magistrate then proceeded to ask X a series of further questions, relating to the speed at which he was driving, the distance at which he was from the deceased when he first saw the deceased, the state of the lights on X’s vehicle, and so on. The scrutinising regional magistrate was of the view that X was raising a triable issue and the plea should have been changed to one of not guilty. The trial magistrate explained that his approach had been to ascertain the facts from X, and then decide if negligence could be inferred from them. This approach necessarily entailed asking X several questions. He would not ask X person directly to admit negligence.
The court held that when proceeding in terms of 271(2)(b) judicial officers, when proceeding in terms of s, are free to ask X whatever questions they deem fit to ascertain the accused’s guilt or innocence. There is no exhaustive list of questions, nor any limit to the ways in which the questions should be put. It is therefore permissible to ask indirect questions and infer from them the accused’s guilt or innocence. An indirect question usually brings out the truth as it does not warn X of the effect his answer may have. It overcomes the problem of an accused person’s appreciation of legal concepts. It brings out real justice as it seeks facts without clothing the question in legal jargon. This approach is preferable because legal concepts are not easy to master. In the case of unrepresented accused persons, the explanations of the charge and its elements should not be expected to fully inform them of the offence to the extent of expecting them to correctly and from an informed position answer direct questions based on legal concepts. Judicial officers should therefore always be careful, when canvassing essential elements, to avoid being satisfied by an accused’s admission or denial of facts couched in legal jargon. They should ensure, through careful probing, that the accused is admitting or denying such facts. If an accused person is asked whether he admits that he was negligent, and he answers “yes”, that answer does not mean that he was indeed negligent. The magistrate who fully appreciates what negligence means must ask questions which will enable him to establish whether or not the accused was negligent.
A judicial officer is expected to know the law applicable to the offence charged. That will enable him to avoid being distracted by answers not relevant to the issues before him. In fact, s 271(2)(b) requires a judicial officer to have such knowledge as it requires him to explain the charge and its essential elements to the accused and to be satisfied, by the facts he gathers during the canvassing of essential elements, of the accused’s guilt. Here, the offence charged was culpable homicide. The magistrate therefore correctly carried on with the canvassing of essential elements, because the accused’s answer was not a valid defence to the offence charged.
With crimes like theft and malicious damage to property the judge should always investigate whether X committed the crime under any sort of claim of right. See, for instance, Kawocha S-22-92, where a defence of claim of right was not sufficiently investigated on a charge of stock theft.
If a statute provides that an offence is only committed if the act was done without “lawful excuse” or “reasonable excuse” or some other defence, the judge must carefully investigate that X does not only admit that he or she did the prohibited act, but that he or she did it without any lawful or reasonable excuse as envisaged by the statutory provision.
Difficult, technical elements of the offence must be properly explained. These include elements such as “consent”, “knowledge” and the “grievous bodily harm” element in the offence of assault with intent to do grievous bodily harm and phrases such as “without lawful authority or reasonable excuse, the proof whereof shall lie on X”. Unless the court explains such terms to X, it will not be possible to ascertain whether X admits that he or she did the thing which is required for that element to be satisfied. The court must satisfy itself that X properly understands what he or she is admitting and is competent to make the admission: Dube & Anor 1988 (2) ZLR 385 (S); Sibanda 1989 (2) ZLR 329 (S); Deka & Anor S-199-88; Kaja S-129-89; Njiva S-120-89.
In Hove S-20-92, the appellant was convicted of having sexual relations with a girl under the age of 16. The appellant, who was not legally represented, had maintained that he believed that the complainant was over 16. In terms of the statutory provision it is only a defence if X proves on a balance of probabilities that he bona fide believed, and had reasonable cause to believe, that the complainant was above the age of 16. The Supreme Court held that where an accused is not legally represented he or she must be advised of the onus which rests on him or her when advancing a defence provided for in terms of the statutory provision.
In Mushayandebvu 1992 (2) ZLR 62 (S) the magistrate has misdirected himself in accepting a guilty plea from X, an unsophisticated woman, despite the fact that it was clear from the State outline that X was claiming to have acted in self-defence.
In cases where the law lays down that a mandatory minimum penalty must be imposed, unless there are special circumstances or special reasons, X must be told what the penalty is and what is meant by special circumstances or special reasons. This should be done early on in the trial: Dube & Anor 1988 (2) ZLR 385 (S).
In Chaerera 1988 (2) ZLR 226 (S), the magistrate had simply asked X whether he had any special reasons why the mandatory penalty should not be imposed. The Supreme Court said that the magistrate should have gone much further than this. He should have advised X what the minimum penalty was and how that penalty could be avoided by proof of special circumstances. He should have gone on to explain what was meant by “special circumstances”, and he should have asked X whether he had considered obtaining legal representation.
In the case of Mutizwa HB-4-06 when X was asked to plead to a charge of theft of a vehicle, he indicated that he did not intend to deprive the owner permanently of the vehicle. The magistrate did not seem to accept this defence and embarked on further questioning of the accused, but the accused gave the impression that he was sticking to that defence. The court held that the responses proffered by an accused as a result of the inquiry conducted in terms of s 271(2)(b) CPE should amount to an irrevocable admission of the essential elements of the offence charged. Where there is uncertainty as to what accused is admitting to, the court must probe further and satisfy itself that all the essential elements of the offence have been admitted. Where the court has any doubts or the accused raises a defence, the court is obliged to alter the plea to that of not guilty and order that a trial be held to determine the contentious issues.
In Ndlovu & Anor HB-30-02, two accused were jointly charged with assault with intent to do grievous bodily harm and pleaded guilty. When putting questions to clarify the essential elements of the crime, the magistrate did not record any answer to the question whether they intended to cause serious bodily harm. In respect of other questions, it was not made clear whether the reply was from one or both of the accused. It was held that questions relating to the essential elements should not be regarded as questions which should be asked as a matter of course, but rather, as questions whose answers should assist the court in establishing whether the accused understands the core of the allegations against him. In view of the answers given, or not given, it was not safe to convict the accused.
In Goredema & Ors HB-08-08 the accused persons were convicted by different magistrates for being found in possession of goods in regard to which there is a reasonable suspicion that they were stolen. They were convicted for contravening s 12(2) Miscellaneous Offences Act. [re-enacted by section 125 CL Code.] In all these three matters the accused persons pleaded guilty to charges. The trial magistrates proceeded in terms of section 271(2) (b) CPEA and, after questioning the accused, convicted the accused on the basis of their pleas. On review, the issue was whether it was competent to convict the accused persons of the offence without leading evidence.
The court held that one of the essential elements of the offence is that the person finding the accused in possession of the goods should have formed a reasonable suspicion that the goods were stolen. The obligation for the accused to give a reasonable explanation for his possession of the goods only arises if there is evidence that the person finding him in possession had a reasonable suspicion that the goods were stolen. The procedure under S 271(2) (b) CPEA requires that the accused makes admissions. The accused can only admit to facts known to him. It is absurd in plea proceedings to ask the accused if he admits that the person finding him in possession of the goods had a reasonable suspicion that the goods were stolen. The accused cannot know what was in the mind of the person who found him in possession. The person who found him in possession of the goods should testify about the basis upon which he formed his suspicion that the goods were stolen. It is on the basis of this testimony that the court can evaluate whether the suspicion was reasonable or fanciful. Therefore, that the court cannot find an accused guilty of this offence without evidence being led from the person who found the accused in possession about what led him to believe that the goods were stolen. The basis upon which the finder formed his suspicion is neither a fact known to the accused nor a fact to which he can admit. Accordingly, the convictions were quashed and the matters referred for trials de novo before different magistrates.
In a limited number of complex cases, it may not be possible to ensure that the unrepresented accused who wishes to plead guilty receives a fair trial simply by carefully explaining all the essential elements to him or her and probing whether he or she admits to each of these elements.
This may apply where the case revolves around whether a complicated legal requirement has been satisfied, and in some cases where conviction is likely to result in long or mandatory prison sentences. In such cases, instead of accepting a guilty plea, if X cannot afford to engage his or her own lawyer, the court should certify the case so that X receives free legal representation: Dube & Anor 1988 (2) ZLR 385 (S); Pongolani S-48-89.
In Gwande & Anor 2008 (2) ZLR 281 (H) the court stressed that magistrates owe enormous duties toward unrepresented accused persons. The magistrate is the primary bulwark defending the ignorant or impoverished against the potential injustices wrought through an excess of zeal; pressure of work; administrative inefficiency or plain ineptitude in the investigation and prosecution of offences. Where the accused person pleads guilty, and the court proceeds in terms of s 271(2)(b)(i) CPEA the magistrate is duty bound to ensure that the prosecutor has disclosed sufficient and adequate facts, which are capable of informing, not only the court, but also the accused, precisely what the allegations against him are.
Where the prosecution fails to provide or disclose adequate facts in support of the charge, it must be directed to do so: the magistrate must mero motu invoke the provisions of s 177(1) of the Act and direct the prosecution to provide further particulars. Failure by the magistrate to ensure prior disclosure of adequate and sufficient facts amounts to a misdirection and offends against the accused person's constitutional right to be afforded a fair trial, in particular, the right to be informed, in detail, of the nature of the offence charged as guaranteed by s 18(3)(b) of the Constitution.
The purpose of the enquiry in terms of s 271(2)(b)(i) of the Act is to ensure that the accused's plea of guilty is an unqualified or unequivocal and genuine plea. The magistrate can only satisfy himself of this if he asks questions which are carefully formulated by marrying the charge, the essential elements and the particular facts of the case. Merely paraphrasing the definition of an offence will not assist the accused to understand the import of the elements, more so if they are of a technical legal nature.
Magistrates and prosecutors should desist from the practice, which appears to be common, of simply using the State’s outline of its case when the accused tenders a guilty plea. The State outline is not based on facts which the accused has given prior agreement to. The use of the State outline exposes the accused to the danger of being convicted on facts that he has not been given an opportunity to carefully reflect on and has the real potential of the accused being severely prejudiced, in the sense that he may be convicted on the basis of facts which he may not agree with but which facts aggravate the offence and lead to a more severe punishment than warranted. The correct procedure should be that if, in a contested trial, the accused pleads guilty to the charge, the magistrate should take a short recess to allow the prosecutor to interview the accused and draw up a statement of agreed facts based on the information gathered.
In Gaviyaya 2008 (2) ZLR 159 (H) X pleaded guilty in the magistrates court to a charge of contravening s 125(a) CL Code, that is, being found in possession of goods in circumstances giving rise to a reasonable suspicion that they were stolen and being unable at any time to give a satisfactory account of his possession. The magistrate found him guilty on his plea. The facts in the outline of the State case did not contain any explanation of how accused acquired the goods and the questions posed by the magistrate did not elicit any explanation from the accused as to how he came to possess the goods or even what explanation he gave to the police. The court held that it would be absurd to ask an offender in plea proceedings if he admits that there was a reasonable suspicion that the goods found in his possession had been stolen. It is not the accused who suspects himself. The suspicion is formed by a third person, usually a police officer. The circumstances which give rise to the suspicion that the property was stolen must be as perceived by and considered by that police officer. There must be something that the police officer saw and considered in the accused's possession or manner of possession for him reasonably to suspect that the property was stolen. Such a matter is not within the accused's knowledge and so any admission of that element of the offence by the accused would not be of much value. Consequently, where the accused enters a plea of guilty the presiding magistrate should still receive evidence on the circumstances giving rise to a reasonable suspicion that the goods were stolen. Where no evidence has been given, the court is never in a position to satisfy itself that the explanation is not satisfactory. It is the court that has to be satisfied that the accused has failed to give a satisfactory account of his possession and that the suspicion alleged is therefore reasonable in the circumstances.
Clarification of statements
Other than to clarify any of the statements made by X, the court is not entitled to test the truth of the allegations made, nor to investigate whether the facts referred to by X exist or not. No question of onus arises. No one has to prove facts during this enquiry into plea: Chirodzero HH-14-88.
Doubts about plea
If at any stage during the proceedings following a guilty plea, the court is in doubt as to whether X is in law guilty of the crime to which he or she has pleaded guilty, or is not satisfied that he or she has admitted or correctly admitted to all essential elements of the crime or all the acts or omissions upon which the charge is based, or is not satisfied that he or she has no valid defence to the charge, the court must record a plea of not guilty and require that the prosecution proceed with the case as if there had been a not guilty plea: s 272 CPEA.
In Bvunda HH-278-90, the magistrate had entered a plea of guilty to a charge of assault with intent to do grievous bodily harm and had convicted X. The High Court ruled that the magistrate should have entered a plea of not guilty because, after pleading guilty, X made statements suggesting that there may have been provocation and that he may have been somewhat intoxicated. A plea of not guilty should have been entered in these circumstances so that the possible application of these partial defences could have been fully explored.
In Manyami HB-36-90, a magistrate decided from X’s defence outline that he had no defence to the charge and told X that there was no point in having a trial since he would be found guilty on the basis of the admitted facts. This induced X to alter his plea to one of guilty. On review, it was held that the procedure adopted by the magistrate was a gross violation of the audi alteram partem rule and that there was no legal basis for forcing an accused to plead guilty because the magistrate was convinced that X was guilty before he had heard the evidence. The magistrate had shown complete insensitivity to the fact that X was not legally represented.
Recording of inquiry into guilty plea
The court must record its explanation of the charge and its essential elements and any statement of the acts or omissions upon which it is based, including any statement given by the prosecutor of the acts or omissions on which the charge is based, and all statements and replies made by X during this inquiry, and any statements made by X in connection with the offence to which he or she has pleaded guilty: s 271(3) CPEA.
In Phiri HB-62-93in proceedings under s 271(3) CPEA, the magistrate failed to record X’s answers to the questions put to him about the essential elements. The verdict and sentence were set aside.
Guilty pleas from jointly charged accused
Where a number of accused are charged jointly and they are all pleading guilty, the judge must be careful to explain to each accused in turn the elements of the offence and the facts upon which it is based in each individual case and to clarify exactly what it is that each accused is admitting to. Each person must be dealt with separately and the answers of each accused during the inquiry into his or her guilty plea must be recorded separately: Dube & Anor 1988 (2) ZLR 385 (S).
The case of Mazanyane HB-102-95 deals with the failure to conduct any real enquiry into the plea and facts following a guilty plea. A mother was charged with an offence under the Children’s Protection and Adoption Act and on the basis of her guilty plea and after the most superficial of questioning whether she had mistreated her child, she was sentenced.
In Ngwenya HB-17-95 the court observed that in dealing with guilty pleas, magistrates need a systematic approach. Magistrates should go through the following steps:
Explain the charge and the essential elements of the offence to X in a way in which he or she can understand. On charges of unlawful entry and theft the judge must explain:
- intending (at that time) to steal
- stealing someone else’s property
- without his or her consent
- intending permanently to deprive him or her of the property.
The prosecutor must state the facts upon which the charge is based.
Ask X if he or she has understood the explanation given to him or her. Only if he or she has, can he or she be asked if he or she admits each part of the offence. Each essential element must be checked separately. Thus, it is wrong to ask X in one question if he or she entered and took the property. Entry involves an unlawful breaking and the court must establish how X gained entry. It is misleading to ask an accused if he or she had a lawful right to enter and a lawful right to take the property. This suggests there is a lawful right and an unlawful right and the answer to this question cannot be taken as a genuine admission of the essential element. He or she should instead be asked simply if he or she had a right. There must also be an unequivocal admission of an intention to deprive permanently; in this case ambiguous replies were not followed up.
The final question to X, namely whether he or she had any defence or excuse to offer, might have been answered differently if all the essential elements had been properly explained.
The court’s explanation, the prosecutor’s statement and X’s responses must all be recorded.
In the case of Ncube & Ors S-56-93 the court said that magistrates must not be slap-dash in using s 271(2)(b) CPEA. In this case, the court had not recorded the individual pleas of each accused, although the magistrate said that he had asked each accused separately.
Difficulties with particular charges
There are particular difficulties with some charges when it comes to making sure that X properly understands the charges to which he or she is pleading guilty. One of these is assault with intent to cause grievous bodily harm. Care must be taken that X understands the difference between this crime and that of common assault and that he or she is in fact admitting to the more serious crime. Questions along these lines should therefore be asked: “Did you intend to cause serious harm to the complainant?” and “Do you understand that you are pleading guilty not just to common assault but to the more serious offence of assault with intent to inflict grievous bodily harm?”: Mavingere 1988 (2) ZLR 318 (S).
Guilty pleas from legally represented accused
Where X is legally represented the court itself does not have to explain the charge, its essential elements and the acts or omissions upon which it is based to X. Instead, the court can rely upon a statement by X’s legal representative that these things have been fully explained by the legal representative to X and that he or she understands them and is admitting to them: proviso to s 271(2)(b) CPEA.
The lawyer must be asked whether the guilty plea is in accordance with his or her instructions from his or her client. The court should also ask if he or she explained all the essential elements of the crime to his or her client and if the client is admitting to all these elements.
In Mvurume HH-198-02 the appellant, who was legally represented at his trial for attempted murder, pleaded guilty. The magistrate did not put the normal questions to the appellant to satisfy himself that the plea was genuine. He convicted the appellant. Some months later, in spite of the fact that there were no medical reports either on the complainant’s condition or on the appellant’s mental state, the magistrate sentenced the appellant. On appeal against conviction and sentence, the court set out the correct procedure to adopt in this situation. It pointed out that the court must record that the statement on which it relies for a conviction was made by the legal practitioner because it is only for that reason that the court may decide not to give the necessary explanation. A failure to record that the legal practitioner made the statement may cast doubt on whether that statement was made at all. In any event, a statement by a legal practitioner does not preclude the court from making the enquiry itself. In cases of attempted murder involving a physical assault, the absence of a medical report as to the injuries, where the injuries are admitted to have been inflicted, is not fatal to the proceedings in regard to conviction and even to sentence, provided that the injuries are such that they would enable the court to reach, as the only reasonable inference, that the accused intended to cause the complainant's death.
Pleas from company
Unless a director or servant of the company produces a resolution of the company authorising him or her to plead guilty on behalf of the company, the court must enter a plea of not guilty for the company: s 385(3) CPEA.
Plea in absence of lawyer
In Tuhwe S-97-94, appellant’s counsel had arranged for a remand; he was asked to plead in his counsel’s absence instead, pleaded guilty, admitted the essential elements and was convicted. The appeal court was sceptical about his claim that he admitted the offence only because he panicked. It accepted, however, that he had been inadvertently denied the legal representation he wanted and had arranged; it set aside the proceedings and remitted the matter for the plea to be taken before a new magistrate.
Guilty plea to lesser offence than that charged
If X pleads guilty to a lesser crime than that which is charged, it is for the prosecutor, not the court, to decide whether or not to accept the plea. If the prosecutor accepts the plea, X can be convicted of that lesser crime; if the prosecutor declines to accept the plea, a plea of not guilty is entered and the trial proceeds. Where the facts indicate the commission of the crime charged, the State and the court should not accept a plea of guilty to a lesser offence merely to save time: Mahango HH-132-87.
Where the facts indicate the commission of the crime charged, the State and the court should not accept the plea to the lesser offence to save time in having to try the case on the basis of the more serious charge: Matongo HH-132-87.
Limited guilty plea
This is where X pleads guilty to some but not all of the charges. For example, if a person is charged with theft of a bicycle, theft of a television and theft of a coat and he or she pleads guilty to the first two thefts but not the last, the prosecutor will then have to decide whether to accept this limited plea and proceed on the basis only of the first two theft charges.
Unclear or equivocal pleas
Usually, it is clear that X has pleaded guilty or has denied his or her guilt. In the Commonwealth Handbook for Magistrates, a number of examples of ambiguous pleas are given. What if X says “I might as well plead guilty as I want to get it over today”? If, on further questioning, X continues not to say directly whether he or she is admitting that he or she is guilty, the court will have to enter a plea of not guilty. This Handbook gives some further examples.
An accused, who is charged with receiving stolen property, might say “I suppose I’m guilty. I agreed to look after my boyfriend’s bike and he’s now been arrested for stealing it”. The vital question on this charge is whether X knew that the property was stolen when she took it into her possession. Only if it is clear after inquiry that she admits that she did know this should the guilty plea be accepted. Or X might say “If you say I drove through the red lights I suppose I did.” The question here is whether X is admitting that the lights were red. He could be asked whether he himself saw that they were red or whether any of his passengers told him that they were.
With cases of malicious injury to property, an admission that he or she broke the window is not enough; the breaking must be intentional and not merely accidental and X must therefore admit that he or she broke the window intentionally. Similarly, in a case of shoplifting it is not enough that X admits that he or she took the item out of the shop without paying; for shoplifting the taking must be intentional and if it emerges that X is saying that the taking was the result of absentmindedness on his or her part, a plea of not guilty must be entered.
Plea that previously acquitted or convicted (autrefois acquit or autrefois convict)
An accused may only be tried once in respect of a crime. Thus, if he or she has previously been tried and either acquitted or convicted for that crime, he or she cannot be tried again for it.
Section 70(1)(m) of the Constitution provides that a person has a right not to be tried for an offence that the person of which the person was previously convicted or acquitted. This is provided for in s 180(2)(c) and (d) CPEA.
(The equivalent section under the previous Constitution was s 18(6) of the previous Constitution. That section provided certain exceptions to this rule. This proviso was intended to cover irregularities and defects arising subsequent to conviction and sentence. Thus, it was open to the Attorney-General to institute a fresh prosecution for the offences for which the appellant had been convicted after the convictions had been quashed on the grounds of irregularity.
s 180(2)(c) and (d) CPEA. This plea must be dealt with as a preliminary matter before the evidence is led. The question is whether the facts necessary to support a conviction on the current charge are the same as those in the previous case: Ndou & Ors 1971 (1) SA 668 (A).
For the plea to succeed, X must show that he or she was “in jeopardy” (i.e. in danger) at the previous trial of being convicted of the charge that he or she now faces, or a substantially similar charge, i.e. that he or she was previously tried:
- on substantially the same charge;
- by a court of competent jurisdiction;and
- he or she was convicted or, if he or she was acquitted, that the acquittal was on the merits.
X must show that he or she was in jeopardy of being convicted of the charge which he or she 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.
In the case of Moyo HB-18-84, X raised the defence of autrefois acquit. He had previously been convicted of unlawful possession of a firearm. He had thereafter continued to possess it without a firearms permit. The question was whether he could be tried again for this offence arising out of his continued unlawful possession. The answer was yes.
However, s 180(2)(c) CPEA does not refer to the situation where the previous conviction has been set aside by reason of irregularity. See s 18(6)(a) and (b) of the Constitution. In such cases, a re-trial may be proper because the previous proceedings have been set aside or a re-trial has been ordered. See Manera 1989 (2) ZLR 92 (S); Mlauzi v Attorney-General of Zimbabwe S-48-92. In this latter case, the appellant had been convicted and sentenced for car theft. The appellant was going to appeal against these convictions. After these convictions, however, the records of the proceedings leading to his conviction were lost. Before the appeals were heard the convictions were quashed by the High Court on the grounds that the records had been lost.
The status of a deposit fine and admission of guilt should be remembered in cases of such a plea. For the purposes of a criminal charge the payment of a deposit fine is prima facie an unequivocal acknowledgement of guilt and when an acknowledgement of guilt and a deposit fine is confirmed by a magistrate, the offender will stand convicted and sentenced by a court. He or she cannot be convicted again in respect of substantially the same offence, as this will violate the autrefois convict rule: Gore 1999 (1) ZLR 177 (H).
Section 18(6) of the Constitution lays down that no person may be tried again for the same offence of which he or she was previously convicted. However, this section provided certain exceptions to this rule. The present case fell within proviso (a) to that section in that the convictions had been set aside “on the ground of any other irregularity or defect in the procedure”. This proviso was intended to cover irregularities and defects arising subsequent to conviction and sentence. Thus, it was open to the Attorney-General to institute a fresh prosecution for the offences for which the appellant had been convicted after the convictions had been quashed on the grounds of irregularity.
In Mpofu v Delta Beverages (Pvt) Ltd HB-131-14 the court pointed out that a plea of autrefois acquit or autrefois convict only applies to subsequent criminal proceedings arising out of same facts. It is not applicable to civil proceedings, including disciplinary proceedings in employment cases
Plea that has received a pardon
X can also plead that he or she has already received a pardon from the President for the offence charged.
Not guilty plea
If X pleads not guilty, or the court alters his or her plea to not guilty, the matter will then have to proceed to trial. Where the prosecutor has been expecting that the case will be dealt with on the basis of a guilty plea, he or she will usually ask that the case be remanded for trial. However, the prosecutor may ask the court to proceed with the trial if the witnesses and exhibits are available. Where X indicated that he or she was pleading not guilty, the prosecutor should normally be in a position to present the State case immediately.
Other pleas which can be raised are that the court does not have jurisdiction to try the case or that the prosecutor has no title to prosecute: s 180(2)(f) & (g) CPEA.
There can also be a plea that he or she has already received a pardon from the President for the offence charged: s 180(2)(e) CPEA.
Change of plea before evidence led
An accused may plead guilty before one magistrate and be found guilty on the basis of the plea. The proceedings may then be adjourned. If he or she later decides to change his or her plea another magistrate is legally permitted under s 180(6)(ii) CPEA to hear this application provided that no evidence has been adduced at the first hearing: Dube & Anor S-126-89.
Change of plea after conviction
In Chinotsa HH-98-11 X as convicted on his plea of guilty to contravening s 28 (2) of the Firearms Act The pistol in question had been stolen from the accused vehicle which he had parked outside a shop and left unattended. The appellant was unrepresented during the recording of the plea and essential elements of the charge. After obtaining legal counsel he sought to change his plea but the application was rejected. On appeal he contended that the trial court erred in not permitting him to alter his plea to not guilty. This is because he did not understand the essential elements of the offence.
The court held that the test whether there is a reasonable possibility that an innocent person was convicted. Further, the change of plea should be done under oath. The applicant should prove that he did not understandingly and voluntarily plead to the charge to warrant a change of plea. Although the facts put to X were brief it cannot be said that they were insufficient to properly inform him of the essential elements of the offence. This is because during mitigation the appellant was given an additional opportunity to explain why he committed the offence. Even though X was unrepresented during the recording of the plea and essential elements of the charge, there is nothing to indicate that he did not appreciate what he was pleading to. As explained earlier, during mitigation the trial court further asked the appellant why he committed the offence. Surely, if he had an additional explanation from which a doubt could be entertained that he was genuinely pleading guilty, this would have been the appropriate opportunity to do so. The nature of the charge is not such that it required a sophisticated person to appreciate what was required of him.
Withdrawal of charge after plea
Once X has pleaded he or she is entitled to a verdict and, if the charge or charges are withdrawn, the court must enter a verdict of not guilty: s 9 CPEA.
The prosecutor may make the decision to withdraw where the proof of the case against X runs into considerable problems and it appears to the prosecutor that he or she will now not be able to prove the case. Thus he or she withdraws in order to avoid wasting the time of the court.
If the prosecutor decides to withdraw the charge, the judge must acquit even if he or she disagrees with the prosecutor’s decision to withdraw. The decision in this regard rests with the prosecutor, not with the judge. Sometimes the prosecutor takes this course as a result of a suggestion from the defence lawyer. While it is perfectly in order for a defence lawyer to make such a suggestion during an adjournment, the same cannot be said of whispered comments made to the prosecutor in court.
Where prosecutor withdraws after plea, the effect is that the court has no power to continue with the trial thereafter: Chari 1998 (1) ZLR 180 (H).
Proof required following not guilty plea
If X has pleaded not guilty, the prosecutor will have to prove every averment in the charge in order to secure a conviction, unless the defence relieves him or her of part of the burden by admitting to certain facts.
In terms of the proviso to s 272 CPEA, any element, act or omission correctly admitted by X up to the stage that a not guilty plea is entered by the court following a not guilty plea and which has been recorded in terms of s 271(3) CPEA, is sufficient proof of the element, act or omission.
State and defence outlines
Reid-Rowland 16-21; 16-34
If X pleads not guilty, or a plea of not guilty is recorded because he refuses to plead to the charge or to plead directly thereto, the next stage is to call upon the prosecutor and X or his lawyer to give their outlines: s 188(a) and (b) CPEA.
First, the prosecutor must make a statement outlining the nature of his case and the material facts upon which he relies.
In Dube S-25-92 the court said that although the state outline should be an accurate summary of the police docket, discrepancies between it and the evidence of state witnesses are not given the same weight as discrepancies between the defence outline and X’s evidence, because it is not prepared by or on behalf of the witness. If there are discrepancies on an essential matter, a satisfactory explanation must be given, or the State will not prove its case beyond reasonable doubt.
In Ndoziva HH-43-11 X attacked a complainant’s evidence on the basis that the State outline indicated that she was interrogated by the police before she identified the perpetrator. He suggested that the identification of the culprit was extracted by force. The court pointed out that unlike a defence outline which is prepared from what the accused person tells his counsel and is tendered into evidence with his approval, a State outline is not prepared on the instructions of the complainant, is not approved by the complainant before it is tendered in evidence and does not constitute part of the complainant’s testimony. The word ‘interrogation’ in the State outline did not constitute part of the elder girl’s testimony, was not placed therein by her or with her approval. In fact, it was at variance with the evidence led at the trial. It could not, therefore, be used to undermine her testimony.
Discrepancies between State outline and witness evidence
In Wairosi 2011 (1) ZLR 145 (H) the court pointed out that any serious difference between the State’s outline and a complainant's or witness's evidence during the trial cannot be held against the complainant or the witness, as they do not take part in the preparation of the State's outline. The difference must, however, be satisfactorily explained as it will be fatal to the State's case if it remains unexplained when the State closes its case. The reason for drawing an adverse conclusion is that, because of the conflict between the two, a doubt is raised as to whether the State witnesses are being truthful. Such a conflict may easily be explained by the production of the complainant's statement to the police. But if this is not done, so long as that conflict is unresolved at the end of the hearing, the benefit of the doubt must be accorded to the accused; for it would not be possible to say that the State has proved the case which it undertook from the onset to prove, and has therefore proved its case beyond a reasonable doubt.
X must then be requested to make a statement outlining the nature of his defence and the material facts on which he relies. The accused is required to give an outline of his or her defence and to also list the witnesses he or she propose to call and to outline the evidence of each such witness in sufficient detail to inform the Prosecutor-General of all the material facts relied upon in his or her defence. See Moyo HH-528-16
If he is legally represented his lawyer will make this statement on his behalf. If he is not legally represented he must be warned that if at this stage he fails to mention any fact relevant to his defence, which in the circumstances existing at the time he could reasonably have been expected to have mentioned, the court may draw adverse inferences from this failure when determining his guilt for the offence charged or any other crime which he may be convicted of on that charge and the failure may be treated as evidence corroborating any other evidence against him: s 189(2) CPEA.
In Bennett 2009 (2) ZLR 345 (H) the court pointed out that where X is committed for trial in terms of s 66(2) CPEA, a notice is served on him in terms of s 66(6) requesting him to give an outline of his defence to the charge and a list of the witnesses he proposes to call, together with a summary of the evidence which each witness will give. Where the accused is represented by a legal practitioner, s 66(8) requires the legal practitioner to supply this information to the Attorney- General at least three working days before the trial date.
Failure by the accused to supply an adequate outline does not entitle the Attorney-General to apply for the striking out of the defence outline. It simply places the accused at the risk that the court may, in terms of s 67(2), draw such inferences from the failure as appear proper and that the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused. Similarly, failing to supply the information by the stipulated time would not give rise to the striking out of the defence outline. It would simply entitle the Attorney General to an extension of time to consider the defence outline.
Allowing accused to present his or her defence
In Muleya 1992 (1) ZLR 68(4), X had pleaded not guilty to a charge. At the end of the cross-examination of the complainant by X, the magistrate found X guilty without giving him a chance to present his defence. He did so because he was of the opinion that there was no triable issue. On review, the High Court held that this was a serious irregularity. An accused has a right to receive a fair trial and he or she is always entitled to present his or her defence no matter how untenable or unreasonable it might appear to be. It is a serious miscarriage of justice to stop the trial in the middle like this. It is only where X changes his or her plea or makes certain admissions that a full trial may become unnecessary.
Calling of witnesses by accused
X must be allowed to call his or her witnesses. If his or her witnesses are not available when he or she wishes to call them, the proceedings must be adjourned so that he or she can be given a reasonable opportunity to contact them and ensure that they are available at the resumed hearing.
However, in the case of Nyathi HB-90-03 the court pointed out that not every refusal of an adjournment or postponement of a trial to give the defence time to call a witness who is not available at court constitutes a gross irregularity. The question is whether in refusing the adjournment all the material facts were taken into consideration. In this case, the accused abandoned his intention to call his witness after two postponements failed to secure the attendance of the witness.
In the case of Samakomva HH-8-05 the court ruled the right granted to an accused person under s 18(3)(e) of the Constitution to facilities to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court did not mean that a request to have defence witnesses compelled by the court could be had just for the asking. The accused must demonstrate that the testimony of such witnesses will be both material and favourable.
In Yusuf 1997 (1) ZLR 102 (H) X, who was not legally represented, had intimated to the magistrate that he would like a handwriting expert to be called to testify as to the authorship of certain key documents in a fraud case. The prosecutor undertook to arrange for handwriting tests to be carried out. The matter was remanded on a number of occasions because the prosecutor failed to honour his undertaking. Finally, the accused indicated that he wished the matter to be finalised because he had been on remand too long. The magistrate proceeded to give judgment in which he found the accused guilty. On review it was held that when a person is on trial for a criminal offence he must be given a full opportunity to give evidence in his defence and to call such witnesses as he may wish. This right is laid down in s 18(3)(e) of the Constitution and is a fundamental principle of natural justice. Section 18(3)(e) provides that the accused is entitled to obtain the attendance of witnesses on the same conditions as those applying to witnesses called by the prosecution. This includes the right to the subpoenaing of reluctant witnesses. The failure to call the handwriting evidence constituted an irregularity. The indication by the accused that he wished the proceedings to be finalised did not amount to a waiver of his right to call the witness. It was not expressed as such and meant no more than he did not want a further postponement. Where the accused is faced with the inability or reluctance of the State to provide necessary facilities or rights, the powerlessness of the unrepresented accused should not be taken as acceptance of that default. Even if the magistrate erroneously took the accused’s statement that he did not want a further postponement to be a waiver, this would not have cured the irregularity as the accused was in no way to blame for the irregularity or for any misunderstanding on the part of the magistrate. Even if the accused had consented to be tried without the witness, there still would have been a fatal irregularity, as such consent would truly have been no more than an impotent acquiescence in the face of the failure or refusal by the state to comply with its undertaking and obligation to secure the attendance of the witness. The accused was entitled to have his witness’s attendance enforced by the machinery of the State and the judicial process. The bumbling and ineffectual measures taken by the prosecutor and his unexplained broken promises fall far short of affording the accused his right to a fair hearing.
Questioning of witnesses
Where the parties are legally represented, counsel will elicit the evidence of the witnesses by asking them questions. The reason why the witnesses are not just simply put in the witness box and asked to relate their stories is that only evidence that is relevant and admissible may be put before the court. Most witnesses are not aware of the rules of evidence and therefore appropriate questions are asked in order to adduce relevant and admissible evidence. Legal counsel will also try to extract the evidence in a clear and orderly fashion rather than allowing witnesses to give their testimony in a confused and haphazard fashion.
Nonetheless, the witnesses must be allowed to give their own description of the events. Questions may be put to help the witnesses to relate their own version of events but the witnesses must not be told what to say or questioned in such a way as to suggest the answers to the questions. The judge must therefore ensure that leading questions are not asked and that the prosecutor, defence lawyer or accused does not end up cross-examining his or her own witness. Leading questions may, however, be asked in order to elicit undisputed information of a routine nature such as the names and addresses of witnesses.
Where an accused is not legally represented, the court may have to assist X in eliciting the relevant information from witnesses he or she may call in his or her defence.
There are some questions which the witness cannot legally be compelled to answer. These include such things as disclosure of communications between married people, communications between lawyers and clients and so on. The circumstances in which a person may not be compelled to answer questions are set out in ss 290-297 CPEA.
If the witness steadfastly refuses to answer a question which he or she is legally obliged to answer (or to produce a document or thing which he or she is legally obliged to produce), the judge should intervene and order the witness to answer the question (or produce the document etc.) and warn him or her that if he or she refuses, he or she will be sent to prison. If he or she still declines, in terms of s 233(1) CPEA the judge may adjourn the proceedings and order the committal of the person to prison for up to eight days. If, at the resumed hearing, the person persists in his or her refusal the person can again be imprisoned for up to eight days. This process can continue until the person agrees to do what he or she has been ordered to do by the judge.
This is the process of questioning of witnesses by the other side or any co-accused after the testimony has been adduced in the examination-in-chief.
The purpose of cross-examination is to try to get the witness to alter, qualify, amend or retract evidence given, to discredit his or her evidence or to elicit from him or her evidence favourable to the party cross-examining. Leading questions are allowed in cross-examination and the court should normally allow greater latitude than in examination-in-chief to the questioner, particularly where the questioner is an undefended accused.
The failure to cross-examine a witness on any matter generally implies an acceptance of his or her evidence on that point. If the point is disputed the questioner would be expected to put questions to the witness suggesting that the witness is mistaken or is lying on that point. However, where an accused has already asserted facts in his or her defence outline which contradict the witness, the judge should not normally draw an adverse inference if X omits to cross-examine on the point. The judge (if the prosecutor has not already covered the point) may put the conflict to the witness and invite his or her comments. Where evidence proving an essential element is missing, the issue that the appellant did not challenge it in cross-examination does not arise. He or she cannot challenge what is not there: Manyika HH-215-02.
If evidence has already been given or will be given subsequently which is to a different effect from that stated by the witness, the effect of that evidence must be put to him or her in cross-examination to enable him or her to admit, deny or explain it.
A person may not cross-examine his or her own witness. During his or her testimony, a State witness may say something in evidence which may mean that X has some defence. He or she might say, for instance, that X was very drunk. It is impermissible for the prosecutor to cross-examine his or her own witness on this point in order to rebut this aspect of the evidence of the witness. The judge must stop the prosecutor if he or she does this. If the prosecutor thinks that his or her witness has become hostile, he or she must apply to the court to declare him or heror her to be a hostile witness, and only after the witness has been so declared is the prosecutor entitled to cross-examine him or her. This topic is dealt with more fully in the section on “Evidence — inconsistent previous statements and impeachment”.
With the undefended accused the judge should inform him or her of his or her right to cross-examine State witnesses and explain to him or her what cross-examination is for. He or she should also explain to X the necessity for him or her to ensure that where he or she disagrees with their evidence his or her version must be put to them so that they can comment thereon. The judge must make sure X understands that if he or she disagrees with any evidence they have given, he or she must challenge it in cross-examination since failure to do so might be held against him.
As stated previously, the undefended accused should be given as much leeway as possible when he or she is cross-examining. After all he or she is not a trained lawyer and is not schooled in the rules relating to evidence and cross-examination of witnesses. Instead of the judge telling X in peremptory terms that his or her questions are irrelevant or simply telling him or her angrily that he or she is wasting the court’s time, the judge should bring to his or her attention the aspects of the State witness testimony which are damning and which need to be brought into issue. Where X does not do so, the judge should ask pertinent questions of State witnesses so that lines of defence raised by X in his or her outline are explored with the State witnesses.
After a witness has been cross-examined, the party originally calling him or her may put further questions to him. There are, however, strict limits to the type of questions which may be put and the judge must ensure that these limits are not exceeded by the questioner. Only questions relevant to matters raised within cross-examination may be put; leading questions may not be put. New matters may only be introduced if the judge grants leave to do so. If the matter was not raised in cross-examination due to an oversight, it may only be raised in re-examination if the court grants special leave for the point then to be raised.
In the South African case of Ramalope 1995 (1) SACR 616 (A), the court said that generally speaking, the object of re-examination is to clear up any point or misunderstanding which may have occurred during cross-examination; to correct wrong impressions or false perceptions which may have been created in the course of cross-examination; to give the witness a fair opportunity to explain answers given by him or her under cross-examination which, if unexplained, may create a wrong impression or be used to arrive at false deductions; to put before the court the full context of fact elicited during cross-examination; or to give the witness an opportunity to correct patent mistakes made under cross-examination. These examples are not a numerus clausus. Re-examination can be, and frequently is, a very important mechanism for presenting a full and fair picture of the evidence of a witness and thus of arriving at the truth. Of course, if counsel wishes to deal with new matter (i.e. not arising from the cross-examination) he or she requires the leave of the court to do so. Re-examination should be allowed on all matters raised during cross-examination, whether they have been raised in examination-in-chief or not. The court should invite counsel to re-examine a witness, not wait for counsel to apply for the right to do so.
In this case, where a magistrate had refused to allow counsel to re-examine his witness except on points which had been raised for the first time in cross-examination, the appeal court found that his refusal amounted to an irregularity.
Questioning of witnesses by judge
The judge’s role is to try to ascertain the truth. He or she is therefore entitled, and indeed duty bound, to ask questions of both State and defence witnesses in order to clarify points and to ascertain the true facts. Where the case involves an accused who is not legally represented, the judge may often have to put questions to the witnesses so that facts favourable to X emerge. The judge must not, however, assume the role of prosecutor and put a barrage of questions to witnesses to try to ensure that X is convicted.
In Denhere & Anor S-39-91 the Supreme Court found that although the magistrate had admittedly asked many questions of the defence witnesses and none of the State witnesses, none of the questions were improper and he had explained in his or her judgment that he needed to resolve all contradictions and also make it clear to those witnesses that, for good reason, he did not believe them, giving them a chance to convince him. He was simply probing the defence to ascertain the truth. He had not approached the trial with a closed mind regarding the possible innocence of X. See also Wright S-183-89; Hove S-64-88.
In the case of Ndhlovu 1992 (2) ZLR 231 (S) the Supreme Court observed that the trial court should ask State witnesses to comment on points clearly mentioned by X in his defence outline if a legally unrepresented accused does not put these points to the witnesses during cross-examination; the court should not simply draw an adverse inference from the X’s failure to raise these points in cross-examination. By doing this the court is not taking sides or entering the arena; it is simply ensuring that X’s defence case is properly commented upon by the witnesses.
Calling of witnesses by court
In S v Mukwambuwe HH-378-14 instead of leading viva voce evidence from its witnesses, the State chose to have its evidence formally admitted in terms of s 314 of the CPEA. As a result, some contentious issues which went to the root of the case remained unanswered.The court held that in terms of s 232 of CPEA the court is empowered to call witnesses mero motu for the purpose of reaching a just decision. However, this power should be exercised sparingly. It is not the function of the court to build up a case which the prosecution has failed to establish. In a defended case, the court can only call a witness in exceptional circumstances, such as if there is a conflict in the evidence which can be resolved by a witness who has not been called. To call, mero motu, the State witnesses whose evidence was formally admitted would have been tantamount to building up the case which the State had failed to build.
Although there is no legal requirement that the parents or guardian of a juvenile must be advised when that juvenile is required to give evidence in court so that they can be present if they so wish, where a young child is called upon to testify, especially where the child is a complainant in a sexual case, it is most advisable that the parents or guardians be informed so that they can be present. The judge may also make use of the vulnerable witnesses’ provisions in the Criminal Procedure and Evidence Act. (See below).
In terms of s 194(8) CPEA, a judge may direct that persons other than the lawyers and the parents or guardian be excluded from the courtroom when a person under eighteen is testifying.
In terms of Part XIVA CPEA magistrates are given the power to take various measures to protect vulnerable witnesses when they testify.
A vulnerable witness is a witness who is likely
- to suffer emotional stress from giving evidence;
- to be intimidated by the accused or another person or by the nature of the proceedings or the place where they are taking place so as not to be able to give evidence fully and truthfully.
Where the judge believes that a person is such a vulnerable witness the judge may take certain measures either at his or her own instigation or on application from a party to the proceedings. The judge may appoint an intermediary or a support person for the witness or direct that the witness will give evidence in a position or place, either out of or in the accused’s presence, that the judge considers will reduce the stress or intimidation.
If the evidence is to be given out of the presence of the accused, the judge must ensure that the accused and his or her legal representative are able to see and hear the person giving evidence by appropriate means, such as through a screen or by means of closed-circuit television.
If the problem is with the place where the proceedings are being conducted, the judge can adjourn the proceedings to some other place, where the court considers the person will be less likely to be subjected to stress or intimidation.
Another alternative measure is for the judge to make an order in terms of the Courts and Adjudicating Authorities (Publicity Restriction) Act excluding all persons or any class of persons from the proceedings while the person is giving evidence.
In deciding whether these measures should be invoked the judge is enjoined to take into account these factors:
- the vulnerable witness's age, mental and physical condition and cultural background; and
- the relationship, if any, between the vulnerable witness and any other party to the proceedings; and
- the nature of the proceedings; and
- the feasibility of taking the measure concerned; and
- any views expressed by the parties to the proceedings; and
- the interests of justice.
The court may also interview the vulnerable witness concerned out of the sight and hearing of the parties to the proceedings, but may not in this interview discuss the merits of the case.
Before it takes these measures, the judge must afford the parties to the proceedings an opportunity to make representations in the matter.
Except where there are special circumstances, the person appointed as an intermediary must be an interpreter or a person who had undergone approved training as an intermediary.
The judge may appoint as a support person a parent, guardian or other relative of the witness or any other person whom the judge considers will provide moral support whilst the witness gives evidence.
Where an intermediary is appointed, a party to the proceedings may only put questions to the witness through the intermediary. However, the judge may put questions to the witness directly or through the intermediary.
Subject to any directions from the judge, the intermediary must convey to the witness only the substance and effect of any question put to the witness and will relay the answer of the witness, using as far as possible, precise words of the witness.
Where a support person has been appointed for a vulnerable witness, the support person will be entitled to sit or stand near the witness whilst the witness is giving evidence in order to provide moral support for the witness, and will perform such other functions for that purpose as the court may direct.
When determining what weight to attach to the evidence of a vulnerable witness for whom an intermediary or a support person has been appointed, the judge must pay due regard to the effect of the appointment on the witness's evidence and on any cross‑examination of the witness.
In Wairosi 2011 (1) ZLR 145 (H) the court pointed out that the intention of s 319H CPEA is to guard against the effect the appointment of an intermediary or support person will have on a vulnerable witness's evidence, in the sense that, in the case of the appointment of an intermediary, the questions are put in the manner deemed appropriate by the intermediary. Taking out the sting from the questions may bring out answers not consistent with the question asked. If that happens, the prosecutor or defence counsel should point that out, or ask the question in a different manner. The section is also meant to allow the court to assess the effect of the appointment of an intermediary or support person on the mind of the vulnerable witness and the resultant effect of that frame of mind on the witness's evidence. The appointment of a support person does not, in terms of s 319H(3), include the receiving and answering of questions through the support person, but merely the rendering of moral support. The court should also consider the effect which the appointment will have on the mind and subsequent conduct of the vulnerable witness. In the case of the appointment of an intermediary, and the use of a separate room, the witness could, due to the relaxed atmosphere from which he will be testifying, lose the effect of the oath or admonition to tell the truth, and drift away into the world of play, losing the need to tell the truth.
Allowing witnesses to be seated
Where a witness is frail, infirm or ill or for some other reason it will be uncomfortable for him or her to testify while standing. Such a witness should be allowed to be seated while testifying. This would apply to elderly witnesses, pregnant women and persons who are ill or disabled.
Statements made by accused to police
Reid-Rowland Chapter 20
Types of statement
All statements made by accused persons outside the court during investigations, including written and oral statements, confessions and statements made to the police during indications are subject to special rules in terms of the Criminal Procedure and Evidence Act. Regarding indications made to the police see Ndlovu 1988 (2) ZLR 465 (S).
The same rules as to admissibility apply to all statements made by the accused, whether oral or in writing, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other). These rules also apply to indications made to the police.
In Toms S-200-93, the court stated that a policeman is only required to warn and caution a suspect before recording a statement. A policeman attending a vehicle accident does not have to caution the motorists involved in the accident before recording their statements in a Traffic Accident Book. A motorist’s statement was admissible unless she was a suspect at the time and was improperly induced, threatened or forced to make the statement.
In Muchindu & Ors 1994 (2) SACR 179 (C) the court stated that in a trial within a trial to determine whether indications made by X were freely and voluntarily made, photographs of X making indications may be produced in order to show that he or she made them freely and voluntarily.
In Mlambo HB-72-03 X signed an admission of guilt and paid a deposit fine for a traffic offence. The circumstances in which he did so were questionable, and it appeared that the police coerced him. He was later charged in court with the offence. It was held that the admission could not be held against him. The trial should be continued without regard to the admission.
Method of production
The method of production of an accused’s statement depends upon whether or not the statement has previously been confirmed before a magistrate.
Confirmed by Magistrate
A statement which has been confirmed by a magistrate under s 113 CPEA must be admitted by the court into evidence on its mere production by the prosecution without any further proof under s 256(2) CPEA. If X challenges the admissibility of the statement the onus is upon him or her to prove its inadmissibility.
Not Confirmed by Magistrate
If the statement has not been confirmed before a magistrate and X challenges the admissibility of that statement, a trial within a trial must be held to determine the admissibility of the statement. The statement must not be admitted into evidence and does not become an exhibit until the State has proved that it is admissible.
If X denies making the statement to the police, the making of the statement becomes a factual issue. The prosecutor will have to call the police officers who recorded the statement to seek to prove that X did indeed make the statement. X or his or her lawyer is entitled to cross-examine these police witnesses.
If X admits he or she made the statement, but asserts that the statement was not made freely and voluntarily, the prosecutor will have to call the police officers who interrogated X and who recorded his or her statement in order to try to prove that the statement was freely and voluntarily made.
The correct procedure for producing an unconfirmed statement is as follows:
1. When a policeman is giving evidence and is about to relate what X said to him or her, he or she should say “X made a statement to me”.
2. He or she should then stop. If he or she does not stop, he or she should be stopped. If the prosecutor does not stop him or her, the judge should.
3. If he or she says, “X then admitted”, he or she should be stopped at once, told of his or her error, and the judge should record ‘X then made a statement’ to this witness.
4. The prosecutor should then ask the witness the standard questions —
a) Was X in his or her sound and sober senses at the time?
b) Did he or she make the statement freely and voluntarily?
c) Was any undue influence brought to bear on him or her to make the statement?
5. The prosecutor should then say to the court, “The State proposes to tender this statement in evidence”, or words to that effect.
6. If all the questions set out in 4. have been answered satisfactorily, the court should then ascertain from X whether he or she wishes to challenge the admissibility of the statement, and should explain, if he or she is not represented, what is meant by challenging its admissibility.
7. If X does not challenge, the witness may then be invited to produce the written statement or recite the oral statement, as the case may be.
8. If X does properly challenge the admissibility of the statement, then a trial within a trial must ensue if the prosecutor still wishes to produce the statement.
Taken from the case of BC & Anor HH-255-84; see also Nkomo & Anor 1989 (3) ZLR 117 (S).
Some statutory provisions require X to give an explanation such as in relation to his or her possession of property in respect of which there was a reasonable suspicion that it was stolen (e.g. s 14 of the Miscellaneous Offences Act [Chapter 9:15] and s 10 of the Copper Control Act [Chapter 14:06]). If X’s required explanation was in written form, the procedure for adducing a warned and cautioned statement does not have to be followed in regard to this statement as X is obliged by statute to advance an explanation; such a statement can be produced without formality like any other statement.
Onus of proof when challenged
Different rules apply depending upon whether or not the statement under challenge had previously been confirmed before a magistrate
Confirmed by Magistrate
Where a statement of an accused person has been properly confirmed in terms of s 113 CPEA, the onus is on X under the proviso to s 256(2) CPEA to prove on a balance of probabilities that the statement was not made by him or her or that it was not made freely and voluntarily and without undue influence. It is not necessary for the court to believe his or her story beyond any doubt; if the court comes to the conclusion, despite certain reservations, that X is telling the truth, then he or she has discharged the onus: Ndlovu 1983 (4) SA 507 (ZS); Mthombeni S-80-90.
In Tshumba & Anor S-137-94 the appellants challenged the validity of the proceedings in which their statements were confirmed. The onus was on the State to prove that there was no irregularity; no record of the proceedings was produced at the trial and the magistrate was not called, so the onus was not discharged and the statement had to be treated as unconfirmed.
The onus was then on the State to prove beyond reasonable doubt, in a trial within a trial, that the statement was made freely and voluntarily and without undue influence. The State did not call the witnesses who allegedly confronted the appellant so there was no proven legitimate explanation for his change from denials to confession. The policeman admitted he recorded only what he thought was relevant, not the whole statement; and the wording of the statement was highly improbable. It should not have been allowed into evidence. The court again emphasised that it was a misdirection to put the statement before the judge during the trial within a trial, or to cross-examine as to its truth.
Not confirmed by magistrate
Where the statement has not been confirmed in terms of s 113 CPEA, the onus rests squarely on the State to prove that it was made freely and voluntarily and without undue influence. The State must prove this beyond reasonable doubt. The reasons why the statement was not confirmed must obviously be probed: Slatter & Ors 1983 ZLR 144 (H).
Trial within a trial
Reid-Rowland 20-17 – 20-19
When X challenges the admissibility of his or her statement it is permissible for the judge to ask X to give details of his or her reasons for challenging the statement. Before doing so, however, the police detail who dealt with the case must be asked to leave the court so that there is no danger of members of the detail adapting their later testimony in the light of the nature of X’s challenge. At the start of the trial within a trial the prosecutor is entitled to ask the judge that X be called upon to indicate how he or she was assaulted or pressurised, where this was done and by whom: Musekiwa & Ors 1965 RLR 225 (A). See Prosecutors Handbook Chapter 23.
Where X denies that he or she made the statement, it is not necessary to hold a trial within a trial unless this denial turns out to be a disguised form of challenge to the admissibility of the statement: Chamba & Ors A-43-79. A straight denial by X that he or she made the statement can be dealt with as a factual matter in respect of which the State can call evidence to try to rebut this denial.
There is no legal basis for holding a trial within a trial where a State witness alleges that his or her statement to the police was extracted from him or her by undue influence. In Million HH-53-92, the holding of such a trial within a trial was highly irregular, as was the allowing of the prosecutor at this trial within a trial to cross-examine his own witnesses as if he were the accused person at the trial within a trial.
In Donga & Anor S-169-93, the court pointed out that a confession may be truthful but may still be inadmissible, e.g. where it has been obtained by duress or other improper means. In a trial within a trial therefore, it does not seem to be advisable for the judicial officer to see the confession itself because if the statement is ruled to be inadmissible, there is a danger of unconscious prejudice. Additionally, the contents show its truth but it was difficult to see how its contents can help prove its admissibility. Further, cross-examination on the truth of a confession is not permitted during investigation into its admissibility.
In cases of multiple accused challenging the admissibility of an extra-curial statement, it is desirable to determine admissibility of all challenged statements in one trial within a trial rather than piecemeal. In Gumbo & Ors HB-46-06 it was held that where there is more than one accused person challenging the admissibility of an extra-curial statement, the admissibility of all the challenged statements should be determined at one trial within trial, rather than dealing with the statements piecemeal. This practice is calculated to ensure that the judicial officer has all relevant evidence before him or her when giving his or her rulings on admissibility. It may happen that the necessity for holding a trial within a trial arises quite unexpectedly or at a time when it would be inconvenient or impracticable to consolidate such a trial within similar trials. Departures from the general practice must be left to the good sense and judicial discretion of the presiding officer.
State witnesses alleging that police assaulted them to extract statements
If X says that he was beaten by the police but that he was not influenced by this beating to make a statement, it will be unnecessary to hold a trial within a trial if the judge is satisfied that X did make the statement without being influenced by the beating as he asserts: Mujuru 1976 (2) SA 900 (RA).
When statement inadmissible
Reid-Rowland 20-2 – 20-8
A confession or a statement made by X is admissible in terms of s 256 CPEA if it is “freely and voluntarily made by X without his or her having been unduly influenced thereto”.
The statement will not have been made freely and voluntarily and without undue influence if X made the statement because:
- he or she was tortured, beaten up or physically maltreated in some other way, such as by being deprived of sleep or food and drink for long periods in order to force him or her to confess;
- he or she was threatened with death or with torture or physical brutality unless he or she made the statement;
- he or she was told that dire consequences would occur to members of his or her family unless he or she made the statement;
- he or she was offered some benefit or advantage if he or she confessed to the crime, such as that he or she would be released from custody as soon as he or she confessed or that if he or she confessed he or she would receive only a light sentence such as a fine;
- he or she had been kept in solitary confinement for a long period and no one had been allowed to visit him or her and he or she confessed simply because he or she could no longer bear this isolation;
- he or she had been denied access to his or her lawyer after requesting access to him or her and had been pressured into making a statement in the absence of his or her lawyer;
- he or she had been subjected to such intensive, hostile and prolonged questioning that his or her freedom of volition had been overborne as a result of this psychological pressure.
The reason why such evidence is not admissible is that the contents of a statement made in these circumstances will be highly unreliable.
See Ananias 1963 R&N 938 (SR); Hlupe 1964 RLR 333 (GD); Murambiwa 1951 SR 271 (SR); Michael & Anor 1962 R&N 374; Dube 1965 RLR 177 (A); Hackwell 1965 RLR 1 (A); Edward 1966 (2) SA 359 (R); Mfungelwa 1967 RLR 308; Schaube-Kuffler 1969 (1) RLR 78 (A); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S); Mthombeni S-80-90; Nkomo & Anor 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).
A confirmed statement can be introduced in evidence on mere production. If X challenges such a statement the onus is on him or her to prove on a balance of probabilities that or she did not make it or did not make it freely and voluntarily.
If challenged, unconfirmed statements may not be produced until their admissibility has been determined at a trial within a trial. The onus is on the State to prove that, despite X’s protestations to the contrary, it was made by X and was made freely and voluntarily.
In the case of Woods 1993 (2) ZLR 258 (S) the Supreme Court commented upon the effect of refusal of the police to allow access by prisoners to their lawyers. It said that the court cannot condone a blatant refusal of access to their lawyers of prisoners held in police custody. Such refusal violates the fundamental right granted by s 13(3) of the Constitution and brings the administration of justice into disrepute. Where there has been a wilful and flagrant denial of access, this will warrant the exclusion of evidence in any extra-curial statement or indication made prior to the allowing of access to the lawyers.
On the other hand, confrontation by the police does not amount to duress. Confrontation is a permissible element of police interrogation procedures, provided it is not improper or persistent. It is not improper to tell a suspect that his or her co-accused has confessed where that indeed has happened, nor is it improper for the police to tell the suspect that they know about an incident connected with the alleged crime. See Nkomo & Anor 1993 (2) ZLR 131 (S).
In the case of Woods & Ors S-60-93, the court dealt with a challenge to a warned and cautioned statement. The court said that if the defence is able to raise a potentially sustainable challenge to the propriety of the confirmation proceedings under Part VIII CPEA when the prosecutor tenders a confirmed extra-curial statement, the court must decide the validity of that challenge as a separate preliminary issue of fact, before the statements are introduced. The impropriety need not be apparent in the transcript of the confirmation proceedings. The defence can rely on external factors, such as a denial of legal representation or a police threat. The onus is on the State to prove the absence of any irregularity. If the challenge is rejected, s 42(1)(a) of Chapter 9:07 is satisfied and the statement is provisionally accepted with the onus then on X to rebut the presumption of admissibility, on a balance of probabilities. If the challenge is upheld, then the separate issue of admissibility must be decided with the onus on the State to prove beyond reasonable doubt that X made the statement, freely and voluntarily and without undue influence. A rolled-up approach to deciding the validity of confirmation proceedings and the admissibility of the statements can be inappropriate and fraught with possible prejudice. The return of an accused person to police custody after confirmation proceedings should be avoided wherever possible, to avoid abuse. In this case, the Supreme Court found that the statements of 2 appellants were validly confirmed, and could have been provisionally admitted with the onus on those appellants to prove their inadmissibility. It then found that the defence had proved the inadmissibility of all the statements made while the police denied all 3 prisoners access to their lawyers.
If an accused is legally represented at proceedings under Part VIIA CPEA to confirm his or her extra-curial statement, the judge can expect the legal practitioner to raise any complaint and need not be on guard to the same degree as he or she should be if X is unrepresented.
A challenge to the propriety of confirmation proceedings can be based on factors not shown in the record of those proceedings, and must be decided as a separate preliminary issue, with the onus on the State. During a separate issue, no adverse inference can be drawn from the refusal of an accused to answer questions about the contents of the statements, because their truth or falsity is irrelevant; it is only their admissibility that is to be decided. Statements made while the appellants were being deliberately denied access to a lawyer were inadmissible, whether properly confirmed or not.
Extra-curial statements made by accused while pointing out
If the accused testifies that the indications made by him or her to the police were made under duress, the court must hold a trial within a trial
In Ndlovu 1988 (2) ZLR 465 (S) the court commented upon the provision now contained in s 258(2) CPEA. This section renders admissible anything that was pointed out by the accused or any fact discovered in consequence of information given by the accused, even if the pointing out or information forms part of a confession or statement that is not admissible. The section does not, however, render admissible the statements or remarks made by the accused while he or she is pointing out the object or scene in question, nor does it cover statements he or she may make on the way to the scene. If the police wish to give evidence about what the accused said in these circumstances, he or she must be given the usual opportunity to say whether or not he or she made the statements freely and voluntarily and without undue influence. If he or she puts the matter in issue, and if the statements have not been confirmed, there must be a “trial within a trial”.
In Mazono & Anor 2000 (1) ZLR 347 (H) the accused stated at their trial that indications made by them to the police were made under duress. The magistrate admitted these statements and decided that they had been made voluntarily, without holding a trial within a trial. The High Court decided that the magistrate had been wrong in admitting these statements. Where there is a dispute as to whether a statement by an accused person was made freely and voluntarily, a separate issue or trial within a trial must be held before such a statement can be admitted in evidence.
See also David HH-204-94.
However, any evidence, such as the murder weapon, discovered as a result of his or her indication or of information given by X is still admissible even if X did not make the indications freely and voluntarily: Nkomo 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).
Whether accuseds’ extra-curial statement admissible in evidence against a co-accused
In Sibanda 1993 (1) SACR 691 (ZS), the court said that it is only in two exceptional situations that an extra-curial statement may be admitted as evidence not only against its maker but also against a co-accused. The first is where the co-accused, by words or conduct, accepts the truth of the statement so as to make all or part of it his or her own. The second exception applies in the case of conspiracy or any crime committed in furtherance of a conspiracy; statements of any conspiracy made in the execution or furtherance of the common design are admissible in evidence against any other conspirator. Statements made after the conspiracy has ceased to exist are not so admissible, however.
As a result, an extra-curial statement made to the police by one conspirator cannot be regarded as corroborating the evidence of a witness implicating a co-conspirator.
In Chatanga HH-19-90, X alleged that he was forced to make the unconfirmed warned and cautioned statement. Without dealing with that challenge by holding a trial within a trial, the policeman who recorded the statement was called and he produced the statement as if it had not been challenged. The review court said that the magistrate should have determined whether the statement was admissible by holding a trial within a trial.
If X admits that he or she made the statement and that it was made freely and voluntarily, then it may be produced in evidence.
A confirmed statement may be introduced in evidence on mere production. If the defence challenges such a statement the onus is on it to prove on a balance of probabilities that X did not make it or did not make it freely and voluntarily.
If the defence challenges an unconfirmed statement the statement may not be produced until its admissibility has been determined at a trial within a trial. The onus is on the State to prove that, despite X's protestations to the contrary, it was made by X and was made freely and voluntarily.
Formal admissions by defence or State
Reid-Rowland 18-4 – 18-5
During the course of his or her trial, X may admit to any fact relevant to the issue. The prosecutor may also make such admissions: s 314 CPEA. Any such admission “shall be sufficient evidence of that fact”.
This provision only applies to admissions during the trial following upon a plea of not guilty or the entering of such a plea by the judge: Dhliwayo 1987 (1) ZLR 1 (H).
This procedure allows for admissions to be made thereby dispensing with the need for that fact to be proved. Where an undefended accused purports to make an admission of fact, the court must ensure that X properly understands what he or she is admitting and that he or she is competent to make the admission. X’s legal representative may make admissions on his or her behalf. Admissions are usually only made by the defence on relatively minor matters which do not go to the heart of the issue.
In Tashu HH-172-94, the court said that when an accused is unrepresented and the prosecutor wants admissions from him or her in terms of s 314 CPEA, the prosecutor must ask the court to seek the admissions, setting out each one clearly and separately. The court must then explain to X that he or she is not obliged to make any admissions, before asking him or her about each point. He or she is not to be pressured, nor to be cross-examined or even questioned by the prosecutor.
In Chirimuuta S-3-95, an unrepresented accused was asked to agree to the production of a policeman’s Traffic Accident Book without calling the policeman. Such a person should never be asked to consent to the production of a document unless it is made quite clear to him or her what his or her consent involves - particularly when his or her defence outline already shows its contents are in issue. Also consent to the production of a document is not an admission that its contents are true and correct.
In Mubaya S-5-93, a blood alcohol level slightly above the legal limit is something outside X’s knowledge; the driver is not shown to have been incapable of proper control. The prosecutor must place forensic evidence before the court in proof of the alleged concentration, or the court must ask for such evidence. The omission to do this and simply relying upon questions under s 271(2)(b) was a fatal defect.
Section 314(2) CPEA further provides that if the judge considers it desirable, for the purpose of clarifying the facts in issue or obviating the production of evidence on facts which do not appear to be in dispute, he or she may on the application of the prosecutor, X or his or her lawyer ask the prosecutor, X or his or her lawyer whether a fact relevant to the issue is admitted.
In the case of Kajokoto HH-32-05 X had pleaded not guilty and outlined the basis for his defence. The prosecutor applied for admissions. When the application was granted, the prosecutor proceeded to interrogate the accused, as a result of which the accused made various admissions. The court held that the magistrate did not comply with the requirements of s 314(2) CPE. The magistrate should have ascertained from the prosecutor what facts it was intended to be sought as admissions. It was the duty of the magistrate, not the prosecutor, to ask the accused person if he was willing to admit the facts concerned in order to obviate the need to adduce evidence. The admissions envisaged by the section are for purposes of clarifying the facts in issue or those facts which do not appear to be in dispute. It is not intended under this section to give the prosecutor an opportunity to cross-examine the accused and force him to make admissions in the absence of any evidence from the State.
Care must be taken to ensure that admissions are correctly recorded as disputes may later arise as to what exactly was admitted.
Production of Exhibits
The way in which exhibits are produced is set out in Chapter 17 of the Prosecutors Handbook.
If the size or condition of an exhibit, such as a knife, is material, the prosecutor will ask the judge to examine the exhibit and note on record the result of his or her observations. If the judge examines an exhibit and makes observations about its size, condition, etc. he or she must state his or her observations e.g. that a knife has a blade which is about 20 cm and appears to have blood stains on it. It is important that all observations are noted in the record. Exhibits are not sent to the High Court on review so the review judge must be able to ascertain details of exhibits from the record. This is also important for the purposes of appeals.
All exhibits produced must be properly proved by evidence on oath from witnesses unless there is statutory authority for handing them in from the bar, that is, for the production of them by the prosecutor. There are a number of documentary exhibits which are usually produced by handing them in from the Bar. These are dealt with below.
All exhibits should be marked as they are produced in court.
Reid-Rowland Chapter 19
Subject to certain exceptions dealt with below, documentary exhibits must be proved by evidence on oath from witnesses.
A court should not put itself in the position where a party to a dispute may perceive it as having acted unfairly. In Austin & Anor v Minister of State (Security) & Anor; Bull v Minister of State (Security) & Anor 1986 (2) ZLR 28 (S), the reliance placed upon a document by the judge was contrary to the audi alteram partem rule and to the protection of law enacted in the Constitution because it was handed to the judge in chambers without access of the other party and not under cover of affidavit or Ministerial certificate. This was held to be irregular.
Photographs and plans
To prove photographs and plans, the State must call the person who made the indications or observations upon the basis of which the photograph was taken or the plan made: s 279 CPEA. The plan or photograph may be handed in to the court by the prosecutor without having to call the witness to prove it if there is consent from the defence to its production without the witness being called: s 279(2)(b) CPEA.
Notes in police notebooks
Police witnesses may wish to refer to notes in their notebooks taken soon after the incident about which they are being asked to testify. The judge is entitled to examine these notes, as is the defence.
In the Prosecutors Handbook Chapter 18, it is stated that police notebooks are frequently used to record unconfirmed warned and cautioned statements. Magistrates should not ask that the relevant pages from the notebook be torn out to put them in the court record as an exhibit. The correct procedure is for the policeman to read the statement from the notebook in evidence and for the judge to record in the court record whatever is read out. The judge should examine the notebook to check the accuracy of the evidence, but should, generally, return the notebook to the witness.
In more general terms, if a witness refreshes his or her memory from contemporaneous notes, the document used to refresh his or her memory should be produced and once produced the witness may be cross-examined on the document. However, the document only becomes an exhibit if the witness is cross-examined on parts of the document other than those he or she used to refresh his or her memory.
Documents admissible in affidavit form
Reid-Rowland Chapter 19
There are statutory provisions allowing for the handing in of certain types of documentary exhibits without calling the persons who made them to testify in court.
Section 278 CPEA allows the production of certain documents from the persons who compiled these documents provided that these are in affidavit form. These are:
Medical Reports from doctors
ss 278, 279 and 280 CPEA.
In cases such as assault with intent to cause grievous bodily harm, culpable homicide, attempted murder, infanticide and rape the State will often want to introduce medical evidence. If the State wishes to produce that evidence in affidavit form certain formalities must be followed.
Section 278(11) CPEA provides that X must be given three days’ notice of the intended production of the report. A written medical report is not admissible unless X has been given three days’ notice of the intended production of the medical report or X waived his or her right to be given three day’s notice. Where X is unrepresented the implications of consenting to the production of a medical report in affidavit form should be fully explained to him. The proper procedure is for the affidavit which is to be adduced in evidence to be read out to X, and for the explanation then to be given to him or her that he or she has a right to have the doctor called for cross-examination and, if he or she consents to the admission of the report, he or she will be consenting to the truth and accuracy of its contents. See Anock 1973 RLR 154 (A) and Chawira 2011 (2) ZLR 210 (H). In the Chawira case the court pointed out that the consent of an unrepresented accused person can only be valid if his right to three days notice is explained to him before he is asked whether or not he consents to its production in general and consents to its production without three days notice. If the affidavit is produced without the requisite notice or consent, it will not have been properly produced and cannot be used as evidence against the accused.
The court has the discretion in terms of s 280 proviso (ii) CPEA to order that the doctor be summoned to give oral evidence at the trial. It may also send written questions to him or her to which he or she must reply.
It will be necessary to use the power to ask the doctor to give oral testimony when the original affidavit is inadequate and the court is unable to arrive at a just decision on the basis of this report. If the information is very scanty or vital information is omitted, or the information in the report seems to be contradictory, this power should be exercised. But if it contains all the necessary information there will be no need to summon the doctor: Anock 1973 RLR 154 (A); Sibanda A-10-72; Melrose 1984 (2) ZLR 217 (S).
It is further provided that at the request of the prosecutor or X, made not less than three days before the trial, the medical practitioner shall be summoned to give oral evidence: proviso (iii) to s 280 CPEA.
Reports from nurses, ambulance drivers and carriers
s 278(5) CPEA.
Reports from Vehicle Inspectors
s 278(4) CPEA.
Photocopies of extracts from accused’s diary
In Dube S-53-95, the court said that a photocopy which was allegedly a part of the appellant’s diary was produced in evidence under s 281 CPEA. No-one knew who had made the copy, and although appellant admitted that he kept a diary, he denied that this was a true extract from it. The copy had not
- been made or kept by him
- been in the course of transmission to him
- been in his custody or control.
It was not admissible in evidence under that section. It could have been admitted if some witness had testified to making it and properly identified its source.
Photographs at scene of traffic accident
In Mposi S-22-94 the appellant’s agents took photographs of the accident site three weeks after the accident and introduced them unproved and unexplained during cross-examination of the complainant. This should not have been allowed: photographs are secondary evidence and are inadmissible unless a proper foundation is laid, or they are admitted by agreement. Great care should be taken before allowing them to supplant the evidence of eye witnesses. Photographs can be taken at angles that distort the truth; the angles from which they were taken should be clearly determined. They should be taken by someone impartial. Their proximity in time is often crucial, especially for traffic accidents on a busy road. Where these photographs conflicted with the eye-witness testimony and the police observations soon after the accident, they had to be rejected.
Reid-Rowland Chapter 19
In various statutes, there is provision for documents to be certified so that they can be produced in court. These include documents certified under s 319 of the Companies Act [Chapter 24:03], under s 196 of the Insolvency Act [Chapter 6:04] and under s 23(6) of the Maintenance Act [Chapter 5:09].
The procedure for the production of certified copies of official and public documents is set out in ss 275-277 CPEA.
Sections 285-289 CPEA provide an easy method of proving entries in bankers’ books. This special procedure is necessary because it would be impossible for banks to function efficiently if their officials had to attend the various courts in the country and produce the bank’s books to prove the entries therein.
Under this procedure a copy of an extract from bank books can be produced without having to call someone from the bank to prove that extract in court, provided that an official from the bank (such as the bank’s accountant) has sworn an affidavit to the effect that the entries in question were made in the ordinary course of the business of the bank and that the copy is a true copy of the original entry.
This procedure applies in respect of commercial banks and other financial institutions registered under the Banking Act [Chapter 24:01], the Post Office Savings Bank, the Agricultural Finance Corporation and building societies. The same procedure applies in respect of foreign banks.
It can be used in relation to bankers’ books and documents such as ledgers, day-books, cash books, deposit slips and letters of transfer.
Under this procedure, X is served with a copy of an extract from the bank’s books. The papers from the prosecutor in this regard must be served on X at least ten days in advance of the criminal proceedings, unless he or she agrees to waive this period of notice.
If he or she wishes to do so, X will be given the opportunity of comparing this copy with the original entries in the bank book. In order to do this, X must make an application to a judge who may make an order that X be permitted to inspect the relevant bank books and take copies from the books which relate to the matter in question. Three days’ notice must be given to the bank should the court grant such an application.
The certified copies of the extracts are prima facie evidence of the matters, transactions and accounts recorded in them. It is not conclusive proof and the court may decide not to accept the documents as evidence of those transactions where, for instance, there is doubt regarding the accuracy of the entries, or where a bank official has been charged with an offence which involves the alteration of the bank’s books of account.
Documents made in course of business
Sections 281-284 CPEA provide for the production of documents made during the course of business or trade.
In terms of s 282(2) CPEA, records relating to any transactions in connection with any trade, business or occupation are admissible on mere production, provided that the facts contained in them would have been admissible as direct oral evidence. The transaction can be either inside or outside Zimbabwe. This provision provides a way for the State to overcome the difficulty of having to call the person who originally made these records.
Section 281(2) CPEA can be used by the State to produce documents such as documents made and kept by an employee or agent of X, as proof of the facts contained in that document, provided that those facts would have been admissible as direct oral evidence.
Section 284 CPEA deals with stamps, signatures and writing on negotiable instruments which were purportedly made by personnel in banks outside Zimbabwe. Until the contrary is proved, these marks on the instruments are deemed to have been made by these bank personnel.
Documents executed outside Zimbabwe
For documents executed outside Zimbabwe to be admissible in evidence the document must be properly authenticated. This is dealt with in rule 3 of the High Court (Authentication of Documents) Rules, 1971 [RGN 995 of 1971]. This lays down that any document executed outside Zimbabwe is deemed to be sufficiently authenticated for the purpose of production in any court if it is authenticated by a notary public, a mayor or a person holding judicial office or by certain specified Zimbabwean diplomatic or consular officials in countries which have such officials.
Evidence on commission
There is provision for taking evidence on commission from witnesses where the attendance of the witness cannot be procured without unreasonable delay, expense or inconvenience: ss 281-284 CPEA. The judge may authorise the taking of evidence on commission in certain limited circumstances. When he or she does this it means that someone else, usually another judicial officer or a legal practitioner, will take and record the evidence and send the record to the trial court. It is the responsibility of the judge to ensure that the papers are forwarded to the person who will take the evidence on commission.
This procedure is very rarely used and is usually only done when the witness is outside Zimbabwe in some distant country. It must only be resorted to in respect of evidence of a formal nature and not evidence which could be the subject matter of serious cross-examination directed towards attacking the credibility or accuracy of the evidence. If he or she so wishes, X is entitled to be legally represented at the proceedings before the person commissioned to take the evidence, at State expense.
This subject is extensively dealt with in Chapter 29 of the Prosecutors Handbook.
Inspection in loco
Reid-Rowland 9-12 – 9-13
In Toms S-200-93 the court said that the facts found at an inspection in loco must be placed on record and the agreement of both parties to those facts should also be placed on record.
Magistrates are given the discretion to decide to adjourn a case on the grounds that this is necessary or expedient. A case can be adjourned at any stage of the trial, whether or not evidence has been given. The period of adjournment must not exceed fourteen days unless X consents to a longer period of adjournment.
A case may be adjourned more than once for sufficient cause: s 166 CPEA.
Magistrates must obviously refrain from adjourning court for frivolous personal reasons.
Where a case is adjourned or postponed the court may release X on bail or extend his or her previous bail: s 167 CPEA. On Adjournment, see Appendix to this Handbook.
Court calling of further evidence
It is a fundamental principle of our law that an accused person is entitled to a fair trial. The trial should be fair in substance as well as form. Where the accused is unrepresented, a trial judge has a duty to assist the accused, and to ensure that relevant evidence is called: Garande HH-46-02. Because the objective is to ensure that justice is achieved and because the liberty of X is often at stake in a criminal case, a judge in a criminal case has the right to call witnesses not called by either party. He or she may also recall and re-examine any witness already examined. He or she may do these things if the evidence appears to be essential for arriving at a just decision in the case: s 232 CPEA. This right, however, must be sparingly exercised. In defended cases it should not be exercised, save in exceptional circumstances, so as to interfere with the discretion of counsel in their choice of evidence they wish to be placed before the court: Zakeyu 1963 SR 434 (FS); Buitendag 1976 (1) RLR 345 (A); Wright S-183-89; Shezi 1994 (1) SACR 575 (A).
After the prosecution and defence had closed their cases and counsel had delivered their addresses, the court recalled a policeman who had given evidence at a trial within a trial to testify that X’s confession referred to the offence with which X was charged. On appeal, it was argued that the court had improperly exercised its discretion under the South African equivalent of s 218 CPEA in recalling the witness.
It was held that the section confers a wide discretion on the court to recall a witness at any stage, and the court’s decision in this case could not be faulted. The policeman’s evidence was inherently formal, concise and uncontroversial.
Section 232 CPEA can also be used when the State by oversight has failed to prove a purely formal element. In Mavingere 1988 (2) ZLR 318 (S) it was stated that if the prosecutor at the trial fails to call the evidence necessary to prove a mere technicality or purely formal element, the judge should call the evidence himself acting in terms of s 232 CPEA. This provision should be sparingly used in respect of a missing element in the State case which is more than purely technical and which is of a contentious nature: Mavingere 1988 (2) ZLR 318 (S); Nyamayaro 1987 (2) ZLR 318 (S).
Discharge at end of State case
Reid-Rowland 16-32; 8-3
Section 198(3) CPEA provides that the court may return a verdict of not guilty after the State has closed its case and before the defence case has commenced. It may only return such a verdict if it considers that there is no evidence that X committed the offence charged or any other offence of which he or she might be convicted thereon.
Section 198 (3) CPEA provides that if at the closure of the State case the Court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon it shall return a verdict of not guilty. The section is couched in peremptory terms. In other words, once the Court has made a finding to the effect that there is no evidence that the accused committed the offence charged or any other offence arising from that charge it has no option but to find the accused not guilty and discharged. See S v Madzokere & Ors HH-37-14.
X or his or her lawyer may apply for discharge at the close of the State case. But where X is unrepresented, even if he or she has not applied for discharge at the end of the State case, the court should consider whether he or she has a case to answer or whether he or she should be discharged without being put to his or her defence: Ruzani HB-63-84.
Under this provision, X may be discharged if there is no evidence either that he or she committed the offence charged or that he or she committed any other offence of which it is competent to convict him or her on the basis of the crime charged. If there is no evidence that X has committed the crime charged, the court must still consider what other crimes it is competent to convict X of on the basis of the crime charged and whether, in the light of the evidence produced by the State, there is evidence that X committed any of these other crimes. If there is such evidence X must be put to his or her defence.
When considering discharge, the judge must consider whether the State has made out a prima facie case against X, not whether the State has proved guilt beyond all reasonable doubt.
X must obviously be discharged if the State has been unable to lead any evidence whatsoever of the commission of the crime charged. This would be a very rare situation. If the entire case against X has collapsed, one would expect the prosecutor to withdraw the charge. The court in Tsvangirai & Ors HH-119-03 was alive to the rarity of such circumstances. The court summarized the circumstances in which discharge will be granted, as follows;
“The court shall return a verdict of not guilty if at the close of the State case the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he or she could be convicted on that charge). Thus, the court must discharge the accused at the close of the case for the prosecution where (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. Instances of the last such cases will be rare; it would only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his or her material evidence can possibly be believed.”
Usually, some evidence will have been advanced by the State. Where this is the case the test to be applied is whether a reasonable court might convict X on the basis of that evidence. In the case of Hartlebury & Anor 1985 (1) ZLR 1 (H), the court elaborated further on the application of this test. It said that a court may order discharge where there is no evidence on which a reasonable court may convict. It may also order discharge where the evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court could safely act upon it or where there is no evidence to prove an essential element of the offence. These latter two grounds for discharge seem only to be particular illustrations of where the evidence adduced would not allow a reasonable court to convict. A reasonable court could not convict where the evidence led is totally unreliable or the State has failed to prove one of the essential elements of the crime charged.
In Attorney-General v Bvuma 1987 (2) ZLR 96 (S), the Supreme Court decided that, if the evidence led by the State is insufficient for a reasonable court to convict, the trial court should not refuse to discharge X at the close of the State case because it thinks that if X is put to his or her defence he or she could possibly provide a missing link in the State case. In other words, the onus is on the State to prove the guilt of X and if the State fails to produce evidence upon which a reasonable court could convict, the court should discharge X. It should not speculate on the possibility that the gaps in the State case might be plugged during the course of the defence case.
Where X is jointly tried together with others and the State has failed to adduce evidence upon which a reasonable court could convict X, it is not a proper basis for refusing to discharge X: Attorney-General v Bvuma 1987 (2) ZLR 96 (S).
In Mpofu S-192-90, two persons were jointly charged with theft of money. The State failed to prove which of the two had stolen the money. The magistrate put the two on their defence as they “were throwing stones at each other” so as to enable the State to discover through cross-examination who committed the offence and who did not. At the end of the case the magistrate then convicted one of the two accused. The Supreme Court said this was a wrong approach. The magistrate should not have put X to their defence in the hope that one might be condemned by his or her co-accused. The State must choose before the trial who to prosecute and who to use as a witness.
In A-G v Bennett 2011 (1) ZLR 396 (S) at the close of the State case, the State had not led the evidence it alleged in the State outline that it would lead. Some of the evidence not led was critical to the linking of the accused to the offence. This critical evidence for the State was either ruled inadmissible or the State witnesses told a different story from that alleged in the summary of the State case. In terms of s 198(3) CPEA, if at the end of the State case, the court considers that there is no evidence that the accused committed the offence charged, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty. “No evidence” means (a) there is no evidence to prove the essential elements of the offence; or (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) the evidence adduced on behalf of the State is wo manifestly unreliable that no reasonable court could safely act on.
In Noormohamed HH-162-12 the court held s 198(3) CPEA provides that if, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty. There is a sound basis for ordering the discharge of the accused at the close of the case for the prosecution, where (a) there is no evidence to prove an essential element of the offence; or (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. However, once an accused person is put on his defence, albeit wrongly, and is ultimately convicted, the refusal to discharge the accused is not in itself a sustainable ground for appeal against the ultimate conviction. When the appeal is heard, the court cannot close its eyes to the evidence lead on behalf of the accused or a co-accused which, taken in conjunction with the State evidence, proves the accused’s guilt conclusively. The question which the appeal court must consider is whether, on the evidence and the findings of credibility (if any), unaffected by the irregularity, there is proof of guilt beyond a reasonable doubt. If the court does so consider – and the onus is on the State to satisfy it – there is no resultant miscarriage of justice and the irregularity will be ignored.
In Mpofu HB-81-12 the court observed that the trial court has no discretion but to acquit at the end of the State case if there is was no evidence upon which a reasonable court would convict the accused. The court is not entitled to place him on his defence in the face of inadequate evidence in the hope that the accused would incriminate himself during his defence. It is the duty of the State to place evidence of probative value before the court in order for the court to hold that the State has established a prima facie case against the accused, meaning proof of the commission of the offence which implicates the accused to such a degree that as to call for an answer. Less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required. The State need not, however, prove the commission of a crime at this stage, but must have adduced evidence which will justify the transfer of the onus to the accused on the basis of his special knowledge of the incident. Where this knowledge is shown, it then becomes the accused’s duty to explain his conduct and he can only do so in his evidence-in-chief which should be tested by cross-examination by the State.
In John HH-242-13 a court said that a court must acquit at the close of the State case where (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) where the prosecution evidence is so manifestly unreliable that no reasonable court could safely act on it. The question whether at the close of the State case there is, or there is no, evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are patently conspicuous. The magistrate, despite glaring deficiencies in the State evidence, nonetheless failed to consider that there was no evidence linking the accused to the crime. There was thus every likelihood that the review court might find that that there was a misdirection so gross as to warrant interference with the trial before it was completed. The review court might also find that the directive by the magistrate that the applicant be put on his defence to “clear” his name was irregular and amounted to a shifting of the onus to the applicant to prove his innocence.
In the South African case of Nzimande 1993 (2) SACR 218 (N), the court said that if at the close of the State case an accused person who is not legally represented has no case to meet, the presiding judicial officer should discharge him or her mero motu. A failure to do so is an irregularity which will amount to a failure of justice if proof of guilt is adduced at some subsequent stage which ought never to have been reached.
The court should exercise its discretion to discharge X at the close of the State case if no prima facie case has been made out and no reasonable court could convict X of the crime charged on the basis of the evidence led by the State.
However, the court must not so discharge X if the evidence led could lead to the conviction of X of some other charge which is a competent verdict for the crime charged.
It must be noted that the accused has no right of appeal against refusal to discharge at the close of the state’s case until after conviction: Hunzvi 2000 (1) ZLR 540 (S).
The defence can apply for discharge of X at the close of the State case if no prima facie case has been made out and no reasonable court could convict X of the crime charged on the basis of the evidence led by the State.
However, the court will not discharge X if the evidence led could lead to the conviction of X of some other charge which is a competent verdict for the crime charged.
Appeal by State against decision to discharge at end of State case
In P-G v Mtetwa & Anor HH-82-16 the Prosecutor-General brought an application for leave to appeal against the magistrate’s decision to discharge the accused. The application was brought in terms of s 61 of the Magistrates Court Act. The court held that an appeal against the decision of a magistrate to discharge at the end of the State case must be brought under s 198(4) CPEA. The Prosecutor-General may appeal under s 61 of the Magistrates Court Act against the decision of a magistrates court on a point of law or because it acquitted on a view of the facts which could not reasonably be entertained. The latter procedure applies a situation where all the proceedings are terminated or a full trial has been completed, whereas the former applies during the course of the trial at the close of the State case. While no time limit is prescribed in s 198(4), such an application must be made in a reasonable time, in view of the need for finality in litigation and to ensure that the interests of justice are safeguarded. The right to a fair hearing within a reasonable time is enshrined in s 69 of the Constitution. What constitutes a reasonable time is a matter of fact and depends on the circumstances of the case. In the circumstances of this case, the delay in the present case was inordinate and unexplained.
Explicitly raised or suggested by evidence
If X is legally represented his or her lawyer may specifically plead a particular defence on his or her behalf. With unrepresented accused, X may not explicitly raise a defence but in his or her evidence he or she may say things which suggest that a certain defence might apply. He or she may, for instance, testify that he or she was extremely drunk at the time he or she committed the crime. Here the judge must carefully investigate whether in fact the defence does apply.
Onus of proof
Once there is sufficient evidence to put a defence in issue, the rule is that the State must disprove the defence. The only exceptions to this rule are:
- the defence of insanity, where the onus is on the defence to prove on a balance of probabilities that X was insane at the time of the crime;
- where a statutory provision provides for defence to an offence but the onus is on X to establish the existence of the defence.
In the case of Mapfumo & Ors 1983 (1) ZLR 250 (S), the court said that, subject to the exceptions set out above, there is no onus on X to establish his or her defence. Once there is some evidence suggesting a defence the court must consider this evidence. That evidence may have been adduced by the defence or it may emerge from what has been said by the defence or prosecution witnesses.
Evidence in rebuttal of defence by State
Sometimes the examination or re-examination of a defence witness may reveal a line of defence that could not reasonably have been foreseen by the prosecutor and which was not indicated during the questions put in cross-examination of State witnesses. In such cases, the prosecutor may ask the leave of the court to call evidence in rebuttal of the defence. The court has a discretion on whether to grant leave. It should normally not grant leave if, by the exercise of due diligence, the prosecutor could have called the evidence before closing his or her case. There must have been something in the nature of a surprise or an unexpected new issue introduced by the defence.
This situation is most likely to arise with an accused who is not legally represented. Such an accused may not have indicated this point in his or her defence outline and he or she may not have realised that it was necessary to put this line of defence to the State witnesses.
Proof of essential ingredients of the crime
An accused person can only be convicted of a crime if each and every essential ingredient of the crime in question has been proved by the prosecution. It is therefore imperative that the judge trying the case is aware of the essential ingredients of the crime with which the accused has been charged.
Defence of mental disorder
In terms of s 29 of the Mental Health Act a special verdict will be returned if the accused was at the time the act was done “mentally disordered or intellectually handicapped so as not to be responsible for the act. It defines “mentally disordered or intellectually handicapped” as meaning that the person is suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind. “Psychopathic disorder” is defined as a persistent disorder or disability of the mind, whether or not subnormality of intelligence is present, which has existed or is believed to have existed in the patient since before 18 years old; and results in abnormally aggressive or seriously irresponsible conduct on the part of the patient. The mental disorder does not have to be permanent disorder. The crucial question is whether the disorder existed at the time the “crime” was committed.Various cases have interpreted these provisions. These cases have decided that under these provisions:
- the disorder or mental disorder or disability can be temporary - if it existed at the time of the act was committed it does not matter that X no longer suffered from that mental condition subsequently and at the time of the trial;
- the cause of the mental disorder or disability is immaterial - organic (e.g. brain tumour); physical (e.g. blow to head); functional (e.g. affecting functions with no discernible organic cause)
See Senekal 1969 (2) RLR 498 (A); Mawonani 1970 (1) RLR 41 (A); Ncube 1977 (2) RLR 304 (R)
Where the crime is apparently motiveless, this should alert the court to the possibility that the accused may have been suffering from some form of mental instability when he committed the crime. In the case of murder odd, inexplicable and bizarre behaviour before, during or after the killing or the way in which he behaves must not be ignored, as it may provide the basis for establishing that X it entitled to the special verdict or at least there was diminished responsibility to an extent that constitutes extenuation. If the accused has not previously been psychiatrically examine, the court may order such an examination. The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering was suffering from diminished responsibility. See Taanorwa 1987 (1) ZLR 62 (S) and Mukombe 1991 (1) ZLR 138 (S). Where the conduct of X at the time of the act was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour.
Even if the defence does not raise the defence of mental disorder, if the court suspects that X was suffering from a mental disorder at the time of the crime, the court itself can order that X be subjected to a psychiatric examination to determine whether the special verdict is applicable.
In A Juvenile 2009 (2) ZLR 409 (H) the court held that the effect of s 229 of the Criminal Law Code is that if an accused person is proved to have committed the acts constituting the crime charged, but is also proved to have been suffering from a mental disorder or defect at the time of committing the offence, which mental disorder or defect constitutes a complete defence in terms of s 227 of the Code, he must in terms of s 29(2) Mental Health Act be found not guilty because of insanity, and be dealt with in terms of the options provided in subss (a) to (c) of that section. Section 229 of the Code applies to Part V of the Code, which comprises ss 226 to 229. However, s 29(2) of the Mental Health Act, which provides for a special verdict, refers to s 248 of the Code as being the section which provides for a mental disorder or defect being a complete defence. Section 248 actually provides for consent to medical treatment for none-therapeutic purposes. It is therefore not the provision intended by the legislature in s 29(2) of the Mental Health Act. The legislature clearly intended to refer to a section of the Code which provides for a mental disorder or defect being a complete defence, that section being s 227. A wrong section was referred to in s 29(2) of the Mental Health Act. As to whether the court can substitute s 248 of the Code with s 227 of the Code, in s 29(2) of the Mental Health Act, the court can do so, as the intention of the legislature is clear, and reference to s 248 was an obvious error. In interpreting a statute, the court must be guided by the clear intention of the legislature. When the words used by the legislature create an absurdity they can be modified to bring out the clear intention of the legislature.
Having returned a special verdict, the court has three options under s 29(2): (a) if the accused person still needs to be mentally examined or to be treated, he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment; (b) If the offence the accused person was facing and for which a special verdict has been returned was one for which the accused could not have been sentenced to imprisonment or a fine exceeding level three, then the accused can be released to be dealt with in terms of s 29(2)(b); (c) if the court is satisfied that the accused is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, it can order his discharge. If (a) is applicable, the condition of a prison does not justify the court's refusal to send to prison those the law says must be send there. The court has to proceed in terms of the correct option. From prison the accused must be transferred to a designated institution or special institution, as defined by s 2 of the Act.
In the case of Machona 2002 (1) ZLR 61 (H), after a series of personal misfortunes, the appellant attempted to commit suicide by cutting his own throat. When taken to a doctor for treatment, he attacked the doctor, severely and permanently injuring him. The medical evidence was that the appellant, who was charged with attempted murder, had suffered a brief “reactive psychosis” or “psychotic episode” which was unlikely to recur. The court held that the appellant was mentally disordered at the time, and not merely suffering from diminished responsibility, and should have been found not guilty by reason of insanity. Because he was no longer mentally disordered, he was entitled to be released from custody. However, with a serious offence like murder, if the psychiatric evidence indicates that the accused is or may be still mentally disordered, the court may order that he or she be returned to prison for transfer to a mental institution for treatment or for further examination to decide his or her mental state. On the other hand, with petty offences the court does not have to order that the accused be sent to a mental institution. Petty offences are those in respect of which the accused would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three. In respect of petty offences if the court finds that the accused was mentally disordered at time of alleged crime but that he is no longer mentally disordered at the time of the trial, it may make any of these orders:
- that he or she submit himself to examination and/or treatment at a specified institution;
- That his or her spouse, guardian or close relative apply for a civil detention order.
The court may then make an order to secure his or her release from custody or for purpose of such examination or treatment: s 29(2) of Mental Health Act.
The requirements for the various defences that can be raised in respect of criminal charges are set out in Chapter 14 of the Criminal Law (Codification and Reform) Act. Defence counsel should obviously familiarise themselves with what defences are available and what the essential requirements are for these defences.
In cases involving violence the most important defences are self-defence, provocation and intoxication.
Self-defence and defence of a third person can be full defences if all the requirements for this defence are satisfied. Involuntary intoxication can be a full defence. Involuntary intoxication involves a situation such as where someone slipped a drug into X’s drink and X consumed it without X knowing that it contained the drug. If X lacked the mens rea for the crime because of the effects of the drug, he or she will have a full defence. On the other hand, provocation and voluntary intoxication can only be defences to a charge of murder. If as a result of the provocation or intoxication or a combination of the two, X lacked the intention to kill, he or she will be found guilty of culpable homicide. In respect of provocation, even if X did intend to kill, if the provocation great and caused X to lose his or her self-control and even a reasonable person subjected to that degree of provocation would also have lost his or her self-control, the crime of murder will be reduced to culpable homicide. Even if the provocation or voluntary intoxication do not constitute a partial defence, they may still amount to extenuating factors so that the death penalty will not be imposed. In respect of all crimes other than murder, the provocation and voluntary intoxication can at most be mitigatory factors.
The question, "Why did you do this?" should always be put to see whether there is some defence which may be open to X. With property crimes like theft and malicious damage to property the legal practitioner should always investigate whether X committed the property crime under any sort of claim of right: claim of right can be a full defence. Although ignorance of the law is no defence in our law (except where X acts on the basis of mistaken advice of an administrative official), claim of right can be a defence. See ss 118, 122 and 144 of the Criminal Law (Codification and Reform) Act. See, for instance, Kawocha S-22-92.
Questioning of accused by prosecutor or judge
If X gives evidence in his or her defence the prosecutor can cross-examine him or her and he or she may be questioned by the judge.
Even if he or she declines to give evidence, under s 198(9) CPEA the prosecutor and the judge may still put questions to him or her. If he or she refuses to answer the questions put to him or heror her, adverse inferences may be drawn by the court from this refusal.
Re-opening of State case
It is not just and proper for the State to be allowed to re-open its case to lead evidence that was available to it from the beginning of the proceedings. To allow such evidence to be led after the close of the defence case is unjust to the defendant, as it gives the State an opportunity to rebuild its case. In Munyaradzi S-74-89, at the close of the State case against the appellant on a charge of receiving stolen property, there was no evidence that X had known that the property, which he admitted buying from the thief, was stolen. At the close of the defence case either the court itself or the State called a witness in an attempt to prove that the prices the thief demanded for the property were so low as to have given the appellant ground for suspicion that the property was stolen. This witness should not have been called.
Addresses at conclusion of defence case
Reid-Rowland 16-38 – 16-39
In terms of s 200 CPEA, both the prosecutor and X or his or her legal representative have the right to address the court at the conclusion of the defence.
Where the parties wish to exercise this right to address, the prosecutor must address first and then X or his or her lawyer will address. If X or his or her lawyer raises any point of law during the address, the prosecutor then has the right to reply to this point. In other words, the defence has the last word on the facts and the prosecutor has the last word on the law.
The court will normally require the parties to address immediately after the defence case is closed. However, in very complicated cases where the evidence is highly contradictory or where there are complex points of law involved, the parties may request an adjournment to prepare their addresses. Such requests for adjournment should normally be granted.
A judge will sometimes tell the prosecutor that it is unnecessary for him or her to address the court. This may be because the judge is quite satisfied of the guilt of X and he or she feels it is a waste of time to hear an address from the State. If this is done it must be made clear to the prosecutor that this is the reason why he or she does not need to hear argument from him. However, in a complex case it is far better always to hear what the prosecutor has to say by way of summarisation and argument. The summation will help the judge to crystallise his or her reasoning.
Even in a simple and straightforward matter if the prosecutor insists on addressing, he or she has a legal right to do so and the judge cannot refuse to allow him or her to do so. If the judge has decided that he or she is going to acquit X, he or she should not seek to prevent the prosecutor from addressing on the basis that anything the prosecutor has to say will change his or her mind. The prosecutor may believe that he or she has made out a reasonable case against X and is entitled to try to persuade the court that its inclination towards acquittal is based upon flawed reasoning or misinterpretation or misassessment of the evidence.
Stopping trial and referral of case to Attorney-General
At any time during the trial a magistrate may, in terms of s 58 MCA as read with ss 225-228 CPEA, stop the proceedings and refer the case to the Attorney-General.
Where a magistrate has already arrived at his or her verdict, but considers that the offence deserves a sentence in excess of his or her jurisdiction, the case can be referred to the High Court for sentence if the Attorney-General decides that this should be done. This aspect is dealt with in detail in the section on sentence.
Before verdict the proceedings may also be stopped and the case can be referred to the Attorney-General. This procedure is designed primarily to deal with situations which arise unexpectedly where the evidence discloses that X has committed a more serious crime than that charged and the magistrate does not have jurisdiction to deal with the more serious crime. For instance, an accused has been charged with indecent assault before an ordinary magistrate and during the course of the case it emerges that X’s acts really constituted rape. As only a regional magistrate can try rape cases, the magistrate should stop the proceedings here, adjourn the case, remand X and submit the case to the Attorney-General who can take the remedial step under s 225 CPEA of directing that the proceedings commence afresh before a regional magistrate if he or she agrees that X should have been charged with rape, or ordering the original magistrate to continue to deal with the case if he or she does not.
The prosecutor may also under these provisions request the magistrate to stop the trial. If he or she does so, the magistrate must stop the trial and refer the matter to the Attorney-General who must decide which course of action to take under the powers given to him or her under s 225 CPEA. The State should take care to charge the correct charge on the facts and to bring the case before the magistrate with appropriate jurisdiction in the first place. The prosecutor should not request the magistrate to stop the proceedings because, some time after the proceedings have commenced, he or she changes his or her mind about the charge and decides that he or she should have charged a more serious crime, even though he or she originally decided on those same facts that a lesser charge should be brought. But he or she can legitimately make this request if the evidence discloses the commission of a more serious crime than the police investigations originally disclosed: Moyo (2) 1978 RLR 469 (GD); Collett 1978 RLR 288 (GD) at 291.
This procedure should be sparingly used as it involves expense and inconvenience, especially if X is in custody: Moyo (2) 1978 RLR 469 (GD).
This topic is dealt with in more detail in Chapter 39 of the Prosecutors Handbook. This Chapter points out the circumstances in which prosecutors can request the magistrate to stop the trial if the magistrate has refused to stop the trial on his or her own initiative, or where the magistrate has refused to allow the charge to be amended, or to allow the State to recall witnesses or re-open its case.
Change of plea before verdict
Where an accused applies to withdraw a plea of guilty before verdict, the presumption of innocence still applies. X must give an explanation as to why he or she initially pleaded guilty and why he or she now wishes to change his or her plea. Once he or she gives an explanation, however, it will suffice; there is no onus on him or her to convince the court of the veracity of his or her explanation. If he or she fails altogether to give an explanation for the withdrawal of the original plea the court is entitled to hold him or her to his or her plea.
Even though X’s explanation may be improbable, the court is not entitled to refuse the application unless it is satisfied that the explanation is not only improbable but false beyond reasonable doubt. If the application is one to which s 272 CPEA applies, the question of onus cannot arise: Nyathi & Anor 1988 (1) ZLR 221 (H).
If X alleges that his or her plea of guilty was the result of improper conduct by those in authority over him, the court must stop the proceedings and investigate this allegation.
Change of plea after conviction
Sections 227 and 271(2)(b) CPEA
In the case of Jackson HH-201-02 X, together with a colleague, stole a car in Chinhoyi. While driving it away, the accused lost control. His companion was killed and the vehicle was badly damaged. At his trial in a regional magistrates court, the accused pleaded guilty and was convicted. The matter was referred to the High Court for sentence. Before the hearing, the accused’s legal representative indicated that the accused wished to change his plea to one of not guilty. The reason given was threats by the police. The question was whether the High Court could remit the matter to the lower court for the accused to change his plea. The court held the application to change the plea should be directed to the trial court. Although there is no onus on the accused – all he or she must do is offer a reasonable explanation for having pleaded guilty – less is required of him or her when he or she applies to the High Court for remittal to change his or her plea. All he or she must show is that he or she has an explanation which prima facie shows that he or she has a reasonable explanation for a change of plea to give to the trial court. Sections 227 and 271(2)(b) CPEA apply in this regard.
In Chinotsa HH-98-11 X as convicted on his plea of guilty to contravening s 28 (2) of the Firearms Act The pistol in question had been stolen from the accused vehicle which he had parked outside a shop and left unattended. The appellant was unrepresented during the recording of the plea and essential elements of the charge. After obtaining legal counsel he sought to change his plea but the application was rejected. On appeal he contended that the trial court erred in not permitting him to alter his plea to not guilty. This is because he did not understand the essential elements of the offence.
The court held that the test whether there is a reasonable possibility that an innocent person was convicted. Further, the change of plea should be done under oath. The applicant should prove that he did not understandingly and voluntarily plead to the charge to warrant a change of plea. Although the facts put to X were brief it cannot be said that they were insufficient to properly inform him of the essential elements of the offence. This is because during mitigation the appellant was given an additional opportunity to explain why he committed the offence. Even though X was unrepresented during the recording of the plea and essential elements of the charge, there is nothing to indicate that he did not appreciate what he was pleading to. As explained earlier, during mitigation the trial court further asked the appellant why he committed the offence. Surely, if he had an additional explanation from which a doubt could be entertained that he was genuinely pleading guilty, this would have been the appropriate opportunity to do so. The nature of the charge is not such that it required a sophisticated person to appreciate what was required of him.
In S v Chikwashira HH-282-14 the appellant, who was unrepresented at his trial at the magistrates court, pleaded guilty to a charge of stock theft. After conviction, but before sentencing, he applied to change his plea to one of not guilty. The magistrate rejected the application and sentenced him to the mandatory minimum sentence of 9 years’ imprisonment. On appeal the court held that in terms of s 272 CPEA, the court is required to record a plea of not guilty if any of three situations become apparent at any stage before sentence is pronounced: (a) when the court, for any reason, entertains doubt that the accused is in law guilty of any offence to which he has pleaded guilty; (b) where the court is not satisfied that the accused has correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or (c) if the court is not satisfied that the accused has no valid defence to the charge. Where the accused makes an application after verdict to alter his plea to one of not guilty, all that he is required to do is to give a reasonable explanation of why he pleaded guilty to the offence charged in the first place. It is only when the court is satisfied that the explanation tendered by the accused is beyond reasonable doubt false that the court can refuse to alter the guilty plea to one of not guilty. The court is not required to delve into the merits of the accused’s case in order to determine whether his application for a change of plea ought to succeed. The question is not whether the accused’s case carries with it any prospects of success. The issue is whether he has put forward an explanation for the guilty plea which, in the circumstances, is beyond reasonable doubt false.
No conviction for conduct that was not offence at time or is no longer offence
Section 70(k) and (l) of the Constitution provides that a person:
- may not to be convicted of an act or omission that was not an offence when it took place;
- may not to be convicted of an act or omission that is no longer an offence.
No conviction if pardoned or previously acquitted for conduct that was not offence at time or is no longer offence
Section 70(n) of the Constitution provides that a person may not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits.
Where sentence changed
Section 70(n) of the Constitution provides that a person may not to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.