pleas open to accused https://old.zimlii.org/taxonomy/term/10179/all en S v Mutyorauri (HB 271-18, HCAR 1644/18 X Ref CRB GKP1239) [2018] ZWBHC 271 (01 November 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/271 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>WILLARD MUTYORAURI</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 31 OCTOBER &amp; 1 NOVEMBER 2018</p> <p> </p> <p><strong>Review Judgment</strong></p> <p>            <strong>TAKUVA J:  </strong>This record was placed before me by the Registrar pursuant to a request by the Regional Magistrate Gokwe.  Attached to the record of proceedings are the following comments by the Regional Magistrate</p> <p>“The accused person was convicted on his own plea of guilty to a charge of assault in consequence whereof was sentenced to 6 months imprisonment of which 3 months imprisonment was suspended on usual condition of good behaviour.</p> <p> </p> <p>The gist of the charge is that the accused person lifted the complainant up and threw him on the ground.  When the essential elements of the offence were being canvassed, the accused person said that “… I just pushed him and he fell on the ground”.  During mitigation he repeated the same and said that, “I only pushed the complainant and he fell down.”</p> <p> </p> <p>From accused person’s answer, I am of the view that the accused person’s plea of guilty is not unequivocal, unqualified and genuine admission of guilt.  The accused person’s plea of guilty is a qualified one hence, the trial magistrate was duly bound to either ascertain whether the state accept the qualified plea or alter the plea of guilty to one of not guilty in terms of section 272 of the Criminal Procedure and Evidence Act (Chapter 9:07) [the Code].</p> <p> </p> <p>In light of this, it is my considered view that the proceedings are not in accordance with real and substantial justice.  Accordingly, I hereby forward the record of proceedings for review in terms of section 58 (3) (b) of the Magistrates’ Court Act (Chapter 7:10).”</p> <p>            Earlier in answer to the Regional Magistrate’s query the trial magistrate had <em>inter alia</em> said;</p> <p>“I stand guided from the Regional Magistrate’s wisdom.  Accused person admitted to the conduct of lifting up and throwing complainant on the ground as per outline of the state case during the question and answer exchange.  The court was satisfied that accused had admitted to the essential elements of the offence though it is accepted that accused later told a version of how it occurred.”  (my emphasis).</p> <p>            These proceedings are a typical example of non-compliance with section 272 of the Code.  The section provides:</p> <p>            “272.   Procedure where there is doubt in relation to plea of guilty</p> <p> </p> <p>If the court at any stage of the proceedings in terms of section two hundred and seventy-one and before sentence is passed –</p> <p> </p> <ul> <li>Is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty; or</li> <li>Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or</li> <li>Is not satisfied that accused has no valid defence to the charge; the court shall record a</li> <li>plea of not guilty and require the prosecution to proceed with the trial …” (my emphasis)</li> </ul> <p>See also <em>S</em> v <em>Dube &amp; Anor</em> 1988 (2) ZLR 385 (S) and <em>S</em> v <em>Mubvumbi &amp; Ors</em> 2011 (2) ZLR 251 (H).</p> <p>            <em>In casu</em>, the gravamen of the charge according to the charge sheet and state outline is that the accused committed an assault upon the complainant, “by lifting him up and threw him on the ground …”  </p> <p>The following exchange took place between the court and the accused while canvassing the essential elements:</p> <p>“… Q              You admit that you lifted up the complainant and threw him on the ground?</p> <p>            A         -           Yes</p> <p>Q          -          What did you intend by lifting complainant and throwing him on the ground</p> <p>A         -           There was commotion and I did not know what happened to me as I just pushed him and he fell on the ground”.</p> <p>            After a series of questions the court found the accused guilty as charged.  However, in mitigation of the sentence the accused said;</p> <p>            “There was no misunderstanding between myself and the complainant.  I only pushed the complainant and he fell down …”  The accused was sentenced to 6 months imprisonment of which 3 months imprisonment was suspended for 5 years on condition accused does not within that period commit any offence involving violence upon the person of another from which upon conviction is sentenced to imprisonment without the option of a fine.</p> <p>            The trial magistrate’s view if I understand it correctly is that since the accused initially admitted to lifting up the complainant and throwing him down, whatever he said later which directly contradicts this admission is immaterial.  This attitude is wrong in that it goes against the letter and spirit of section 272 <em>supra.</em>  For example, can it be said that the accused correctly admitted all the essential elements of the offence or all the acts, or omissions on which the charge is based in circumstances where he admits lifting up the complainant and throwing him down?  The answer is certainly in the negative and the misdirection by the court <em>a quo</em> lies in answering that question positively.  In my view where an accused admits a fact that forms an essential element of a crime but later gives an answer that is in direct conflict with that earlier admission, a plea of not guilty must as a matter of law be entered.  On the facts therefore, I agree with the Regional Magistrate that the plea cannot be described as unequivocal, unqualified and genuine admission of guilt.  In the result, the conviction and sentence are improper and incompetent in that the court <em>a quo</em> was required by the mandatory provisions of section 272 to alter the plea to one of not guilty.</p> <p>            Accordingly, I make the following order:</p> <ol> <li>The conviction is set aside.</li> <li>The sentence is quashed</li> <li>In view of the fact that the accused has already served 1 month in prison, he is entitled to his immediate release as it is unjust to order a trial <em>de novo</em> in the circumstances.</li> </ol> <p> </p> <p> </p> <p>Makonese J ……………………………………. I agree</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/271/2018-zwbhc-271.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20374">2018-zwbhc-271.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/271/2018-zwbhc-271.pdf" type="application/pdf; length=84870">2018-zwbhc-271.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleas-open-accused">pleas open to accused</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div></div></div> Thu, 20 Dec 2018 08:54:36 +0000 admin 9232 at https://old.zimlii.org S v Hondo & Another (HB 183/18, HCAR 966/18 Ref CRB BYO P1369A-B/18) [2018] ZWBHC 183 (05 July 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/183 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>NOMORE HONDO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>DANIEL MOYO</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 5 JULY 2018</p> <p> </p> <p><strong>Criminal Review</strong></p> <p>            <strong>MAKONESE J:        </strong>The two accused persons appeared before a Provincial Magistrate at Tredgold facing allegations of contravening section 125 (a) of the Criminal Law Codification &amp; Reform Act (Chapter 9:23); being found in possession of property reasonably suspected of being stolen.  The accused persons tendered pleas of guilty.  They were duly convicted and sentenced to 8 months and 5 months imprisonment respectively.</p> <p>            The scrutinizing Regional Magistrate raised a query with the court <em>a quo</em>, indicating that it was not proper for the learned magistrate to accept a guilty plea in cases involving receiving of stolen property, without receiving evidence on whether or not the accused had the requisite intention to commit the offence.</p> <p>            The brief facts of the matter as gleaned from the outline of the state case are as follows.  On the 6th of May 2018 around 0130 hours and at corner George Silundika and 8th Avenue, Bulawayo, police officers from Bulawayo Central Crime Prevention Unit were on patrol.  The police officers spotted the two accused persons who were walking along George Silundika Avenue, ladden with an assortment of goods.  The police officers requested to search the accused persons.  Accused one was found in possession of a Remington hair clipper, Remington hair cut video tape, 6 car modulators, a Huawei Y 220 cellphone, 2 auto lamp holders, 1 pair of reflectors and tools, a bag, a timing belt, 27 spanners of different sizes, 13 screw drivers of different sizes, 3 pliers, a hammer and various other scrap materials suspected to be stolen.  Accused two was in possession of empty 10 litre containers, yellow jerry can, pair of reflectors, 2 caps and other scrap materials.  The two accused persons were asked to account for the property and they failed to give a satisfactory explanation of the source and origin of the property in their possession.  The total value of the property in their possession was US$408.  The accused persons were arrested and taken to court on allegations of being found in possession of property suspected of being stolen.</p> <p>            Section 125 (a) of the Criminal Codification and Reform Act is a re-enactment of section 12 (2) (b) of the Miscellaneous Offences Act (Chapter 9:15).  The learned magistrate in the <em>court a quo</em> proceeded in terms of section 271 (2) (b) of the Criminal Procedure and Evidence Act (Chapter 9:07).  Having read and explained the essential elements of the charge to the accused persons, both accused indicated that they understood them.  The magistrate then put the following questions to accused one;</p> <p>            “Q       Correct on 6 May 2018 around 0130 hours you were at corner George Silundika Street and 8th Avenue, Bulawayo.</p> <p> </p> <p>            A         Yes</p> <p> </p> <p>Q         Correct you were approached by police officers who were on patrol?</p> <p>A         Yes</p> <p> </p> <p>Q         Correct you were searched and found in possession of Remington clipper, Remington hair video tape, a Huwei cellphone Y 220, tool bag with 27 spanners of different sizes, 13 screw drivers, 3 pliers, a hammer and various scrap materials?</p> <p> </p> <p>A         Yes</p> <p> </p> <p>Q         Were did you get all the property?</p> <p> </p> <p>A         City hall, we picked the property</p> <p> </p> <p>Q         Correct your possession of the property raised a suspicion that you had stolen the property?</p> <p>A         Yes</p> <p> </p> <p>Q         Any defence to tender?</p> <p> </p> <p> </p> <p>A         None</p> <p>Q         Is your plea a genuine admission of the charge and facts and essential elements?</p> <p> </p> <p>A         Yes</p> <p> </p> <p> </p> <p>Verdict Guilty as charged”</p> <p>            The same procedure was adopted by the trial magistrate in respect of the second accused.  He was also convinced on his own plea of guilty.  It was upon these facts and answers solicited from the accused persons that the accused were convicted and sentenced.  It is abundantly obvious that the explanation as to how the accused had come into possession of the property suspected of having been stolen was not enquired into.  It was necessary to call the police who effected  the arrest to lead evidence of the circumstances that gave rise to their suspicion that the goods were stolen.  The accused persons told the police that they had “picked” the property at City Hall.  There was a need to rebut this defence and to prove the essential elements of the offence.  The essential elements relate to the reasonable suspicion that the property was stolen.  The accused persons were nevertheless convicted as charged.  In mitigation, accused one conceded that he had relevant previous convictions relating to unlawful entry and theft.  The trial magistrate proceeded with the sentencing of the accused person without enquiring into whether the essential elements had been proved and established.</p> <p>            In matters relating to contravention of section 125 (a) of the Criminal Law Codification and Reform Act the following essential elements must be proved:</p> <ol> <li>Possession of property capable of being stolen</li> <li>Circumstances of his or her possession such as to give rise either at the time of his or her possession or at any time thereafter to a reasonable suspicion that when he or she came into possession of that property it was stolen.</li> </ol> <p>Proof of knowledge that property was stolen may be:</p> <ul> <li>Direct, e.g. testimony given by the thief which is corroborated; or</li> <li>Indirect, e.g. reliance upon a number of suspicious factors which may assist in proving intention such as:</li> </ul> <ul> <li>the accused was found in possession at an unusual time and place;</li> <li>the accused was found in possession of such property in suspicious circumstances and was unable to give a satisfactory account of the possession.</li> </ul> <p>See <em>A Guide to the Criminal Law</em> by G. Feltoe at page 125.</p> <p>            In this matter, it is the police officer who must have seen that something was amiss about the accused persons’ possession of the property.  Such is within the police officers’ knowledge and the accused persons could not testify on behalf of the arresting detail.  The accused persons had no knowledge of how the police arrived at the conclusion that there was a reasonable possibility that the goods were stolen.  These are essential elements that are not within the accused’s knowledge and therefore any admission of these elements by the accused would not be of much value.  See <em>S </em>v <em>Gaviyaya</em> 2008 (2) ZLR 159 (H), where the learned judge had occasion to deal with a similar matter.</p> <p>            Such essential elements are in the class of elements noted by DUMBUTSHENA CJ in <em>S</em> v <em>Dube &amp; Anor</em> 1988 (2) ZLR 385 (S) when he remarked at page 390A as follows:</p> <p><em>“Not every fact should be regarded as proved simply because it is admitted.  Thus an admission of “being in a prohibited area” should not be blindly accepted.  The court should require proof that the area was indeed a prohibited area.  See S v Deka &amp; Anor S-199-88.  The same is true of an admission of “possession”.  The court must be careful to establish what it is that the accused is admitting because possession is a difficult concept.”</em></p> <p> </p> <p>            In <em>S</em> v <em>Chiwondo</em> 1999 (1) ZLR 407 (H) at page 415-15, CHATIKOBO J had this to say in a similar matter:</p> <p><em>“it would be absurd to ask an offender in plea proceeding 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, normally a police officer.  It is such a person harbours the suspicion.  He is who assesses the circumstances under which he finds the accused in order to determine if the suspicion harboured by him is reasonable.”</em></p> <p>            In the circumstances of this case, the accused told the arresting detail that they had picked the property in question at the City Hall.  It was imperative for the trial court to conduct a short trial, put the police officer on the stand and ask him how and why he arrested the accused persons.  The accused’s defence would have been put to the test and the court would then have come up with an informed decision as to whether the accused persons had sufficiently explained their possession of the property.</p> <p>            In all the circumstances, there was no evidence to satisfy the court that the essential elements of the offence had been satisfied.  The learned trial magistrate has conceded that it was not proper to accept the plea of guilty without proceeding to trial.</p> <p>            In the result, and accordingly, the conviction was not proper and cannot be allowed to stand.  The conviction and sentence are hereby set aside.</p> <p>            The matter be and is hereby referred to the court a quo for a trial <em>de novo</em>.</p> <p> </p> <p> </p> <p>                                    Mabhikwa J ………………………………. I agree</p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/183/2018-zwbhc-183.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22323">2018-zwbhc-183.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/183/2018-zwbhc-183.pdf" type="application/pdf; length=135800">2018-zwbhc-183.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleas-open-accused">pleas open to accused</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Tue, 07 Aug 2018 14:12:57 +0000 admin 9091 at https://old.zimlii.org