This is an application for review.
On the 16th of June 2009,
the applicant was convicted of contravening Section 29 of the Schedule to the
Police Act [Chapter 11:10] as read with Section 34 of the Police Act [Chapter
11:10] in that he improperly disposed of 85 litres of diesel for tillage. The applicant
filed this application upon dissatisfaction with the conviction and the
penalties that followed.
The third and fourth respondents
apparently are the ones that unearthed the theft of the diesel at ZRP Springs Farm.
The trial, before a single officer,
was presided over by the third respondent, and the fourth respondent was
prosecuting. This, in essence, means that the third and fourth respondents
were complainants/witnesses in the same case that one of them adjudicated upon
and the other prosecuted. The respondents, in paragraph 3.3 of the respondents'
heads of argument wherein the respondents' counsel states that:-
“3.3.1 It is trite that the
trial did not adhere to the principles of natural justice, viz,
(a) Audi alteram partem rule.
(b) Memo judex in sua causa.
3.3.2 The third and fourth respondents
arrested the applicant, prosecuted, and tried him. It is not in dispute
that this was a flagrant miscarriage of justice.”
This point was rightly conceded to
by the respondents.
Although the respondents are opposed
to this application, having said that they concede that the proceedings were a
flagrant miscarriage of justice, one wonders what then makes the respondents'
counsel be of the view that such can be overlooked by this court.
The proceedings breached the rules
of natural justice and clearly cannot stand. Section 27 of the High Court
Act [Chapter 7:06] provides that the grounds for review are the following:-
(a) Absence of jurisdiction on the
part of the court, tribunal or authority concerned.
(b) Interest in the cause, bias,
malice, or corruption on the part of the person presiding over the court or
tribunal concerned or on the part of the authority concerned.
(c) Gross irregularity in the
proceedings or decision.
Clearly, if the third and fourth respondents
were complainants/witnesses, judge and prosecutor in the same case, they could
have had interest in the cause; and proceeding in this manner amounted to a
gross irregularity in the proceedings. The proceedings can therefore not
stand.
I accordingly grant the application
in the following terms:-
(1) The decision of the trial by a
single officer on 15th and 16th June 2009 be and is
hereby set aside.
(2) The matter be remitted back to
the first respondent for a trial to be conducted before a different officer.
(3) Respondents to bear the costs of this
application.
