CHEDA J: This is a
review judgment forwarded to me as is the normal review procedure, in
particular as the scrutiny Regional Magistrate raised a query.
The accused was charged with contravening section 89 of the Criminal Law
Codification and Reform Act [Chapter 9:23].
He pleaded guilty, was convicted
and sentenced as follows:
“7 months
imprisonment of which 2 months imprisonment is suspended for 5 years on
condition accused does not during that period commit any offence involving
assault and for which upon conviction he is sentenced to imprisonment without
the option of a fine. The remaining 5
months imprisonment is wholly suspended on condition accused completes 175
hours of community service at Beitbridge Magistrates' Court.
The community
service shall commence on Monday to Friday excluding public holidays between
the hours of 8am to 1pm and 2pm to 4pm and to the satisfaction of the person
incharge at the institution. The
performance shall commence o 07 September 2010 and must be completed within 5
weeks of that date.”
Nothing turns on the conviction, but, it is the sentence which needs
close scrutiny. The scrutiny Regional
Magistrate observed that the medical report was produced after conviction and
immediately before mitigation. When he
raised this with the trial magistrate his response was that the medical report
can be produced anytime before sentence in view of the fact that the offence is
now covered by the Criminal Law Codification and Reform Act.
With all due respect to the learned trial magistrate, the court should
have all the information regarding the commission of the offence before
conviction, and this includes production of the weapon if any, and opinion of a
professionally trained person to determine the injuries of the complainant and
advise as to the possibility of a disability or some such consequences which
may flow from the injuries sustained by the complainant. It has always been these courts' position
that magistrates are not properly qualified to form an opinion on matters
outside their discipline, more particularly medical matters which is a science
discipline for which a good pass in a science subject at 'A' level is a pre-requisite. Such opinions should be entirely left with
the medical practitioners who are science-oriented, see;
S v
Sibanda and another HB 65/92 (cyclostyled) at page 6 where CHEDA J (as he
then was) stated;
“... in the absence
of any medical reports, the magistrate was wrong in convicting the accused of
assault with intent to do grievous bodily harm.”
The accused has already served his sentence which was unfair and unjust.
Magistrates in particular those at the Provincial level should be
willing to be guided by their supervisors, Regional Magistrates included. This is not a sign of weakness, but, infact
is a sign of pragmatism as it is through experience from their seniors that
they can permanently learn the art of trials.
The following order is made:
Order
(1) The conviction is quashed and
is substituted by the conviction for common assault.
(2) The sentence is confirmed.
Cheda
J...........................................................................
Kamocha
J agrees..............................................................
