The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.The facts, as set out in counsel for the applicant's founding affidavit, are that the ...
The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.
The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.
Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.
In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.
There were no replies to those letters.
On the date of trial, the matter could not be heard as the defence persisted with its complaints. The Defence Outline was later filed on 11 July 2008. On the other hand, the State was notified of the defence's intention to raise a constitutional challenge against the charge that was preferred against the applicants.
On 5 August 2008, the constitutional issue was argued before HLATSHWAYO J who reserved judgment. Judgment was handed down on 18 November 2008 whereupon the matter was referred to the Supreme Court. The Supreme Court handed down its decision, in which it dismissed the application, on 7 December 2009.
Following the Supreme Court decision, the applicants' counsel personally attended at the offices of the Attorney-General where he requested that the matter be set down during the First Term of 2010. He was advised that it was not possible to set the matter down during that term.
In March 2010, the defence was notified of the setting down of the matter for 21 June 2010.
During the course of the applicants' incarceration, several applications for bail have been made. There was also an attempt to re-indict the applicants at the Magistrates Court a week before 21 June 2010. This was successfully resisted by the defence.
In his heads of argument, counsel for the applicants submitted, that, in terms of section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney General is dominus litis in respect of cases he decides to prosecute. In this respect, a matter may be set down for trial even a year in advance.
He further submitted, that, in terms of section 160(2) of the Criminal Procedure and Evidence Act, an accused who has been committed for trial but not tried within six months is entitled to have his case dismissed. He also submitted that the provision in question is meant to protect an accused person from lengthy incarceration before he is brought to trial. The period in question should be six calendar months calculated in terms of the Interpretation Act [Chapter 1:01].
Counsel for the applicants further submitted that the reckoning of time is between the time the accused persons were indicted and the trial date. That period should exclude the time the Constitutional application was awaiting determination by the Supreme Court. That is the only time the applicants were not available for trial as the trial could not be set down whilst the Constitutional application was still pending.
The State did not file an opposing affidavit.
I must also point out that despite the State having been directed to file a response to the application by 28 June 2010 what were only filed were the State's submissions on the day of hearing.
The court was made to understand that the officer who previously attended to this matter was ill-disposed. However, that does not absolve the State from its obligations.
At the end of the day, one cannot say the matter was opposed in the manner expected of a contested application because effectively all the averments that were made against the State in the applicants' founding affidavit went unanswered save for issues of law that were addressed in the submissions.
In its written response, the State, in essence, raised two aspects regarding the delay in the matter:
(i) Firstly, it is contended that the calculation of the period within which accused persons should have been brought to trial should take into account the times the High Court was on vacation. In this respect, it was submitted that the High Court was on vacation between 29 November 2009 and 12 January 2010 as well as between 1 April and 10 May 2010. The two vacations are taken as a period that was beyond the control of the Attorney General as no trial could be heard during those periods.
Allied to this submission is the contention that the six months that entitle a dismissal of the case must run uninterrupted. In this respect, counsel for the State cited the case of Garikai Mukuze and Another v S whose correct citation is 2005 (1) ZLR 6 (H).
(ii) The other contention is that State witnesses had to be secured first before the case was set down for trial.
It was also submitted, that, between 29 March and 3 April 2010, a suspect was arrested on allegations of abetting the applicants in their attempt to escape from custody. This necessitated a delay as the matter had to be investigated. In this respect, the suspect was tried and convicted on 8 April 2010.
Section 160 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:
“(1) Except as is otherwise expressly provided in this Act as to the postponement or adjournment of a trial, every person committed for trial or sentence whom the Attorney-General has decided to prosecute before the High Court shall be brought to trial on such date as may be determined by the Attorney General:
Provided that the High Court may, on application by the accused and on good cause shown by him, order that the trial shall take place on an earlier date than that determined by the Attorney General.
(2) If a person referred to in subsection (1) is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be dismissed:
Provided that any period during which such person is, through circumstances beyond the control of the Attorney-General, not available to stand trial shall not be included as part of the period of six months referred to in this subsection.”
It is clear from a reading of the above provision 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.
