The
applicant was jointly charged with Norman Bvekwa, his legal practitioner, on a
charge of fraud in contravention of section 136 of the Code. They pleaded not
guilty. The State led evidence and closed its case. The applicant and his co
accused applied for discharge at the end of the State's case. The
representative of the second respondent opposed the application. The first
respondent, in determining the applications, discharged the applicant's co-accused
in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07] but dismissed the applicant's application.
The
applicant applied for the review of the first respondent's decision. That
application is pending before this court. He thereafter faced the prospect of
the trial continuing, on 29 April 2014, during the pendency of his review
application. Attempts to get a postponement pending the determination of his
review application failed.
He
had no other option besides urgently applying for the stay of proceedings
pending the determination of the review application.
The
parties appeared before me for a hearing on 28 April 2014. Counsel for the
respondents applied for a postponement to 30 April 2014. As that date was after
the 29th April 2014, when the trial was to continue, the parties, by
consent, agreed to an order staying the proceedings till the determination of
this application.
An
application for stay of proceedings pending the review of a Magistrate's Court's
decision, in terms of section 198(3) of the Code, depends on the prospects of
success of the review application. If the review does not have prospects of
success, the application for a stay of proceedings must fail.
It
is trite that this court does not encourage applications for review before the
criminal trial has come to an end. If, however, there is, in exceptional
circumstances, evidence that the application for review is meritorious, such a
review can be entertained. See the cases of S v
Sibanda 1994
(2) ZLR 19 (HC) and S v
Masedza & Ors v Magistrate,
Rusape & Anor
1998 (1) ZLR 36 (HC).
The
applicant attacked the magistrate's decision on the grounds that it shifted the
onus to prove his guilt from the prosecution to himself when he put him on his
defence so that he can prove the genuiness of the instructions he gave to his
legal practitioner with whom he had been jointly charged.
I
must determine this application without prejudging the applicant's application
for review. I should merely consider whether it is worth placing before the
court for review or has prospects of success.
In
terms of section 18(4) of the Criminal Law (Codification and Reform) Act [Chapter
9:23], the State bears the onus to prove an accused guilty beyond reasonable
doubt. The accused therefore bears no onus to prove his innocence unless the
Code or a statute places an onus on him. In this case, no onus has been placed
on the accused. The words complained of are on page 170 of the record of
proceedings where the trial magistrate said;
“On
the other hand, Accused 2 maintains that the contents of that letter are true.
In such circumstances, Accused 2 should
prove that his instructions to Accused 1 are not false and were never intended
to mislead anyone.”…,.
As
already said, an accused person is not required to prove his innocence.
In
its decision in terms of section 198(3) of the Criminal Procedure and Evidence
Act [Chapter 9:07], the trial court is first and foremost required to make a
finding that the State's evidence has established a prima facie case against the accused. It is
that prima facie
case that the accused can be put on his defence to answer.
In this
case, it seems there may be prospects of success in the applicant's application
for review.
I
therefore find that the proceedings should be stayed pending the determination
of the applicant's application for review. I therefore order that:-
1. The
applicant's application for stay of proceedings in CRB10504/12 be and is hereby
granted.
2. The
proceedings are hereby stayed pending the determination of the applicant's
application for review in HC3374/14.
