Criminal
Appeal (Reasons for Judgement)
MUZENDA
J:
On
14 August 2019 the appellant appeared before the senior Magistrate
sitting at Mutare facing a charge of Robbery as defined in section
126 of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
state alleged that on 13 August 2019 and Kale Church Federation,
Dangamvura, Mutare, the appellant unlawfully and intentionally used
violence and attempted to strike Tinashe Munyanyi on his hands with
an axe and stole GTel X5 cell phone.
The
appellant who was not legally represented pleaded guilty, he was
convicted and sentenced to 5 years imprisonment of which 1 year
imprisonment was suspended for 5 years on the usual conditions of
future good behaviour.
On
22 August 2019 the appellant noted an appeal against conviction and
advanced two grounds of appeal which were spelt out as follows:
“Grounds
of Appeal
1.
The learned trial magistrate erred and misdirected himself at law
when he failed to fully and exhaustively canvass the essential
elements of the offence with the appellant who was not legally
represented and the conviction is not proper and in accordance with
real and substantial justice.
2.
The learned trial magistrate erred and misdirected himself at law by
failing to explain the gravity of the offence to the unrepresented
appellant and to adequately inform him of his constitutional rights
relating to legal representation.”
On
the date of hearing the appeal, Mr C
Ndlovu,
who appeared on behalf of the appellant abandoned ground of appeal
number two and chose to pursue the first ground.
The
state did not have problems with that and the withdrawal of that
ground of appeal was allowed.
Mr
Ndlovu proceeded to attack the proceedings of the court a
quo
arguing that the trial court did not comprehensively and exhaustively
put across to the appellant the essential elements of the offence of
Robbery, moreso where the appellant was not legally represented.
He
went on to argue that the essential elements of robbery consists of
theft of property by unlawful and intentional using of violence or
threats of violence to induce submission to the taking of it from the
person of another or in his/her presence. The threat of violence or
the violence itself should sustain a charge of robbery or be intended
by the perpetrator to induce or cause the owner of the property to
relinquish his or her property.
Mr
Ndlovu
further submitted that the reading of the record of proceedings does
not show that the essential elements of robbery were established.
He
added that the trial magistrate did not ask the pertinent question as
to what the appellant intended to attain by threatening the
complainant with an axe.
The
essential elements of the charge of robbery, he goes on in his
submissions, were not properly canvassed by form of questions put to
the appellant by the court a
quo.
When
the court showed Mr Ndlovu
the manuscript of the record of proceedings, he admitted that the had
not read the long hand noted by the court, he also admitted that when
the notice of appeal was prepared, the legal firm's professional
assistant might have not read the record of proceedings, he further
admitted before the court that after reading the manuscript of the
record of proceedings, the attack by the appellant contained in the
residual ground of appeal had no merit.
The
trial court comprehensively covered all the essential elements of
robbery and the appeal had no merit at all.
It
is very disturbing to note that an appeal is prepared by a legal
practitioner without first of all going through the whole record of
proceedings including the notes captured by a judicial officer,
moreso where the fulcrum of the appeal is centred on the allegations
of failure by a court to put essential elements of a charge to the
appellant.
The
whole idea of certifying the transcript by all stake-holders is to
confirm that what is contained in the transcribed record is a true
and accurate reflection of the manuscript. Whether the notice of
appeal was prepared by another legal practitioner, the legal
practitioner arguing the appeal must acquaint oneself with both the
manuscript as well as the transcript. All this is done to avoid
misleading the appeal court.
Appellant's
legal practitioners found themselves in a very difficult position to
attack the conduct of the trial magistrate as it clearly appeared in
the record of proceedings that all the essential elements of robbery
were competently and clearly put to the appellant and appellant
admitted to them without hesitation and was properly convicted on his
own plea of guilty.
As
earlier indicated herein appellant's legal practitioners conceded
that the appeal had no merit and it was accordingly ordered as
follows:
The
appeal be and is hereby dismissed.
MWAYERA
J agrees ________________
