UCHENA J Maxim Matsetu who I
will in this judgment call the convicted person appeared before a senior
Magistrate at Mbare magistrate's Court charged with the contravention of s 49
(1) (a) of the Criminal Law (Codification and Reform) Act [Cap 9;23]
(culpable homicide). He pleaded guilty and was convicted on his own plea. He
was sentenced to 6 months imprisonment of which 2 months were suspended on
conditions of good behaviour.
The record of proceedings was
forwarded to an Acting Regional Magistrate for scrutiny. The Acting Regional
Magistrate raised issues on the propriety of the procedure followed by the
trial Magistrate, and ultimately the conviction. Her letter to the trial
Magistrate reads as follows;
“It is the
propriety of the procedure and ultimately the conviction which I am concerned
with. The trial Magistrate proceeded in terms of s 271 (2) (b) and in terms of
that law, accused's responses should amount to an irrevocable admission of the
essential elements of the offence and where there is doubt and where the
accused raises a defence the plea should be altered to not guilty.
The cases
of State v Ndlovu and Another HB 30/02 and State v Makuvatsine
HH 102/04 are relevant.
In
canvassing the essential elements the following exchange took place between the
Magistrate and the accused person;
Q.
Any variations to make?
A. I did
not intend to cause the accident. I did not do it deliberately.
Despite
the fact that accused said he did not intend to cause the accident and thereby
raising a defence at law which should have led to the alteration of the plea to
not guilty. The trial Magistrate still proceeded with “canvassing essential
elements”.
Q.
Why did you fail to stop your car before hitting the pedestrians?
A. I
saw him when he was only about 3 meters away, I could not stop in time.
Q.
Why did you not see him in time?
A. I
had dipped my lights. There was another kombi that had stopped, it was coming
from the opposite direction and its lights were flashing into my eyes, I could
not see properly.
The
following further exchange clearly shows that the trial Magistrate had serious
doubts. Instead of canvassing essential elements I cannot be faulted to
conclude that this was now cross-examination of the accused by the trial
Magistrate.
Q.
Why did you not stop?
A. There
were other vehicles behind me.
Q. What
did you do after seeing the kombi that had stopped?
A. I
reduced my speed to about 60km/hr.
Q. Why did
you reduce your speed?
A. As a
person who had seen that there was a kombi that had stopped I did not
know if it was picking or dropping a passenger.
Q. Do you
admit that Crispen Mukize died as a result of the accident in which
your vehicle hit him?
A. Yes I
had 18 passengers on board.
Q. Did you
have a right to drive in the manner you did, not keeping a proper
lookout on the road, not stopping when you were not seeing properly etc?
A. No.
Q. Any
defence to offer?
A.
No”.
The
accused was nevertheless convicted despite raising what I believe were triable
issues. After convicting the accused person the trial Magistrate then decided
to explain himself which is not normally done if the proper procedure in s 271
(2) (b) is followed or adopted which I concluded was now his reasons for the
judgment.
If the
trial Magistrate can comment.
Was
the proper procedure followed, was the accused not raising triable issues which
can only be resolved in a trial, was the accused therefore properly convicted
and sentenced?”
The trial Magistrate, courteously,
boldly and confidently, responded as follows;
“I must
start by apologizing for responding to your query late. What happened is that I
received the query on 2 November 2012, which was a Friday. Then I went to
Mutoko on Sunday 4 November 2012 and was there until 09 November 2012 doing
partly heard cases. Any inconveniences caused by the delay are sincerely
regretted.
You raised
issue with the propriety of the procedure, and ultimately the conviction, in
the above matter. My response to the issue you raised is found hereunder.
I will
begin by an exposition of my understanding of the offence of culpable homicide.
This offence consists in causing the death of a human being through negligence.
Where negligence is an element, as is the case in culpable homicide cases, it
is not what the accused person intended that is relevant, but what a reasonable
person would say about what the accused person did. So, an accused person might
not intend to cause an accident, yet he drives his motor vehicle at an
excessive speed in the circumstances. If he hits and kills a person, he will be
guilty of culpable homicide, even though he never intended to cause the
accident. A person does not plan to be negligent. All that happens is that his
actions, as he is going about his business, fail to measure up to the
reasonable expectations of others. If those actions cause the death of a
person, then the accused will be guilty of culpable homicide.
Another
important aspect of negligence is that it is not factual, but is inferred. It
all depends on the circumstances. I would thus not expect an accused person to
be asked, “Do you admit that you were negligent?” in canvassing essential
elements of culpable homicide. Such a question would not be clear because
negligence is relative. Indeed if an accused person is asked if he was
negligent and he says “Yes” , we should be worried, because his “Yes” might
well be inappropriate, regard being had to the circumstances of the case.
It follows
therefore that a court must ask an accused to admit the facts, and then infer
negligence from the admitted facts, in a case of culpable homicide. Instead of
asking, “Do you admit that you were traveling at an excessive speed in the
circumstances?” I would rather ask, “What speed were you traveling at? What
time of the day was it? How was visibility? How busy was the road at the time?
Etc), and then infer from the answers given if the accused's speed was
excessive in the circumstances”.
I will
deal with the issues you raised;
(a)
That the accused person was raising a
defence when he said “I did not intend to cause the accident. I did not do it
deliberately”. With all due respect, I do not think this was a defence. Indeed
accused would not have been charged with culpable homicide, but murder, if he
had intended to cause the accident and caused it deliberately. Like I explained
above, it is not what the accused intends to do that is relevant, but what a
reasonable man would say about what the accused has done. It is therefore not a
defence for the accused to say he did not intend to cause the accident, because
specific intent is not an element in a case of culpable homicide.
(b)
“Instead of canvassing essential elements,
I cannot be faulted to conclude that this was now cross-examination of the
accused by the trial Magistrate.”
As I explained above, I do not
believe in asking an accused to admit negligence directly, because such an
admission would be very doubtful. The approach that I adopt is to ascertain the
facts from the accused, and then decide if negligence can be inferred from
them. This approach necessarily entails asking the accused several questions.
So for example I asked, “Why did you fail to stop your vehicle before hitting
the pedestrian?” The answer the accused gave, “I saw him when he was only 3
meters away, I could not stop in time,” would suggest that he had not been
keeping a proper look out on the road. A person who only sees a pedestrian when
he is only 3 meters away must have been inattentive. But I would not ask the
accused, “Do you admit that you had not been keeping a proper lookout on the
road?”
Now having ascertained the facts, I
would then need to state the inferences I would have made.
(C) “After convicting the
accused person, the trial Magistrate then decided to explain
himself”
Like I said above, the approach I
adopt is that I would not ask the accused person to admit negligence directly.
It follows therefore that after getting the facts, I must then state the
conclusions I draw from the facts. I do not know if that would amount to
explaining myself.
In conclusion, I believe that I
properly convicted the accused person. I would also suggest that you assist me
in formulating the questions (just as an illustration) that you would consider
proper and the answers to those questions you would also consider proper for a
conviction on a charge of culpable homicide.
On receipt of this response the
Acting Regional Magistrate remained of the view that the accused person's plea
should have been altered to one of not guilty. She forwarded the record of
proceedings for review by a Judge of this court with a request that she and the
trial Magistrate be guided on whether or not the convicted person was correctly
convicted and sentenced. The lot fell on me. I have to determine whether or not
the trial Magistrate followed the correct procedure and correctly convicted the
accused.
The trial Magistrate, courteously
and confidently defended his work. He did not merely reply “I stand guided” as
most Magistrates do. His response is well reasoned and explains why he
conducted the proceedings in the manner he did. He clearly and respectfully
responded to the issues raised by the Acting Regional Magistrate.
I fully quoted the correspondence
between the scrutinising Acting Regional Magistrate and the trial Magistrate to
lay the basis for this judgment. There is a lot to be learnt from their
exchange of ideas on how to conduct a plea in general and particularly on a
charge of culpable homicide.
Canvassing of Essential Elements in
general
The Acting Regional Magistrate
seems to suggest that the trial Magistrate should have asked direct questions
and altered the plea to one of not guilty when the convicted person's answers
seemed to raise triable issues. The trial Magistrate said he uses indirect
questions and infers from them the guilty of an accused person. He said he does
so to get the facts from which he can, infer the accused's guilty or innocence.
He assesses the accused's answers to determine whether or not they raise real
triable issues. I agree with the trial magistrate that it is permissible, to
ask indirect questions and infer from them, the accused's guilty or innocence.
An indirect question usually brings out the truth as it does not warn the
accused of the effect his answer may have. It overcomes the problem of an
accused person's appreciation of legal concepts. It brings out real justice as
it seeks facts without cloathing the question in legal jargon. This approach is
preferable because legal concepts are not easy to master. In the case of
unrepresented accused persons the explanations of the charge and its elements
should not be expected to fully inform them of the offence to the extent of
expecting them to correctly and from an informed position answer direct
questions based on legal concepts. In the case of S v Nyambo 1997
(2) ZLR 333 (HC) at page 336 D SMITH J commending on how to deal with difficult
legal concepts, said;
“The
accused was not represented. He is hardly likely to have appreciated the
significance of the word `prepared' in this context ... I agree with the
opinion expressed by the Attorney-General that preparation envisages some
process or activity which is intended to ensure that the dagga is ready for
smoking”.
Judicial officers should therefore
always be careful when canvassing essential elements, to avoid being satisfied
by an accused's admission or denial of facts couched in legal jargon. They
should ensure through careful probing that the accused is admitting or denying
such facts.
In the case of S v Tichaona
& Anor 1994 (2) ZLR 402 (HC) @ p 403 B CHATIKOBO J said;
“If the
magistrate thinks that the accused's denial of foresight might be the result of
a lack of appreciation of the import of the question, he should probe further.
There is no exhaustive list of questions, nor any limit to the ways in which
the questions should be put.”
It is not therefore helpful for the
Acting Regional Magistrate and trial Magistrate to dispute over how questions
should have been put to the convicted person. The trial Magistrate explained
why he does not ask direct questions. He is of the view that if an accused
person is asked whether he admits that he was negligent, and he answers “yes”
that answer does not mean that he was indeed negligent. The magistrate who
fully appreciates what negligence means must ask questions which will enable
him to establish whether or not the accused was negligent. In the case of S
v Dube & Anor 1988 (2) ZLR 385 (SC) at page 389 H - 390 A-B
DUMBUTSHENA CJ said;
“There
have been a number of recent judgments in which it has been pointed out how
careful a judicial officer must be when faced with a plea of guilty. Not every
fact should be regarded as proved simply because it is admitted. Thus an
admission of "being in a prohibited area" should not be blindly
accepted. The court should require proof that the area was indeed a prohibited
area - S v Deka & Anor S-199-88. The same is true of
an admission of "possession". The court must be careful to
establish what it is that the accused is admitting, because possession is a
difficult legal concept - Attorney General v Chimwadze 1982
(2) ZLR 218 (SC); S v Zvinyenge & Anor supra; S v Hoareau
S-143-88; S v Dyer S-204-88*. And see generally the remarks of REYNOLDS J in S
v Chirodzero HH-14-88” (emphasis added)
In this case the trial
Magistrate convincingly explained his approach in dealing with pleas to a charge
of culpable homicide. His explanation is logical and well grounded in a desire
to dispense real and substantial justice. It can not be faulted. It should
infact be encouraged.
Accident not intended and not
deliberate
The Acting Regional Magistrate said;
“Despite the fact that accused said he did not intend to cause the accident and
thereby raising a defence at law which should have led to the alteration of the
plea to not guilty” the trial Magistrate proceeded with the canvassing of
essential elements. She thus reasoned that when the now convicted person said;
he did not intent to cause the accident and that his actions were not
deliberate the trial Magistrate should have altered the plea to one of not
guilty. The trial Magistrate's response was an explanation of the difference
between murder and culpable homicide. He concluded that what the Acting
Regional Magistrate suggested would have been correct if the now convicted
person was facing a murder charge. He was again correct even though a plea of
guilty can not be accepted on a charge of murder. He was merely pointing out
that if the convicted person had deliberately intended to cause the accident,
he should have been charged with the crime of murder.
A judicial officer is expected to
know the law applicable to the offence charged. That will enable him to avoid
being distracted by answers not relevant to the issues before him. In fact s
271 (2) (b) of the Criminal Procedure and Evidence Act [Cap 9;07],
requires a judicial officer to have such knowledge as it requires him to
explain the charge and its essential elements to the accused and to be
satisfied by the facts he gathers during the canvassing of essential elements
of the accused's guilty. It provides as follows;
“(2)
Where a person arraigned before a magistrates court on
any charge pleads guilty to the offence charged or to any other offence of
which he might be found guilty on that charge and the prosecutor accepts that
plea—
(a)
-------------------------]
(b)
the court shall, if it is of the opinion
that the offence merits any punishment referred to in subpara (i) or (ii) of
para (a) or if requested thereto by the prosecutor—
(i)
explain the charge and the essential
elements of the offence to the accused
and to that end require the prosecutor to state, in so far as the acts or
omissions on which the charge is based are not apparent from the charge, on
what acts or omissions the charge is based; and
(ii)
inquire from the accused whether he
understands the charge and the essential elements of the offence and whether
his plea of guilty is an admission of the elements of the offence and of the
acts or omissions stated in the charge or by the prosecutor; and may, if
satisfied that the accused understands the charge and the essential elements of
the offence and that he admits the elements of the offence and the acts or
omissions on which the charge is based as stated in the charge or by the
prosecutor, convict the accused of the offence to which he has pleaded guilty
on his plea of guilty and impose any competent sentence or deal with the
accused otherwise in accordance
with the
law:” (emphasis added)
The trial Magistrate's approach to
the convicted person's answer indicates that he knew the elements of culpable
homicide hence his proceeding with the canvassing of essential elements in
spite of the convicted person's abovementioned response.
Scrutinising Regional Magistrates must also have a good graspof the law
applicable to the case under scrutiny. If one is not sure it is important to
check before referring a case for review. Section 58 (3) (b) of the
Magistrate's Court Act [Cap 7;10] provides for a referral of a case
under scrutiny to a Judge for review “if it appears to him that doubt
exists whether the proceedings are in accordance with real and substantial
justice”. A doubt which justifies a referral to a judge for review must
be one which lingers on after the Regional Magistrate has fully played his
part. Scrutinising, means looking, deeply and closely into a matter. It
is not a cursory examination of the record without applying ones knowledge of
the law into what the trial Magistrate did.
The offence which was before the
trial Magistrate was culpable homicide. He therefore correctly carried on with
the canvassing of essential elements because the accused's answer was not a
valid defence to the offence charged.
Section 272 of the Criminal
Procedure and Evidence Act [Cap 9;07), on the basis of which a judicial
officer alters a guilty plea to one of not guilty provides as follows;
“If the
court, at any stage of the proceedings in terms of section two hundred and
seventy-one and before sentence is passed—
(a)
is in doubt whether the accused is
in law guilty of the offence to which he has pleaded guilty; or
(b)
is not satisfied that the accused has admitted or correctly admitted
all the essential elements of the offence or all the acts or omissions on
which the charge is based; or
(c)
is not satisfied that the
accused has no valid defence to the charge;
the court
shall record a plea of not guilty and require the prosecution to proceed with
the trial:.” (emphasis added)
The provisions of this section are
triggered by;
(a)
a judicious doubt as to whether the accused is in law guilty of the offence to
which he has pleaded guilty. The doubt must be grounded in the law. In this
case, the law on culpable homicide, justified the trial Magistrate's proceeding
with the canvassing of essential elements.
(b)
Lack of the judicial officer's satisfaction that the accused has admitted or
correctly admitted all the essential elements of the offence charged or all the
facts or omissions which prove the offence charged. In this case the trial
Magistrate was correctly satisfied that the convicted person was correctly
admitting the elements of culpable homicide.
(c)
Lack of the judicial officer's satisfaction that the accused does not have a
valid defence. It is not every seeming defence which justifies the alteration
of a plea of guilty to one of not guilty. If the judicial officer is not
satisfied that the accused does not have a valid defence, he should alter the
plea to one of not guilty. If he is however satisfied that what seems to be a
defence is not a valid defence at law, he should not alter the plea to one of
not guilty.
The whole exercise therefore depends
on the judicial officer's knowledge of the law.
Where the judicial officer is not in
doubt as the trial Magistrate was and he was satisfied as he said he was there
was no need to alter the plea to one of not guilty. In the case of State
v Makuvatsine HH 102/04, reported as S v Makuvatsine 2004
(1) ZLR 459 @ 462 A referred to by the Acting Regional Magistrate I said;
“Magistrates
must be alert to the provisions of s 272 to enable them to guard against the
conviction of persons whose answers to questions raise doubt, or do not satisfy
them of the accused's guilt or whose answers reveal that the accused may have a
defence.”
In this case the accused's answer
did not raise any doubt in law, as regards culpable homicide. It satisfied the
trial Magistrate of its irrelevance to culpable homicide. It did not reveal a valid
defence to culpable homicide.
Dazzled by the lights, of an on
coming motor vehicle
The Acting Regional Magistrate also
believed the trial Magistrate should have altered the plea to not guilty as the
accused seemed to be raising a defence of sudden emergency. Again ones
knowledge of the law is an aid to knowing when to alter an accused's plea to
one of not guilty.
The convicted person told the
Magistrate that he reduced his speed to 60 km/hour. He thus proceeded
into the accident at 60 km/hour unable to see ahead. That is the maximum speed
one should travel at in an urban area. He was driving along Simon Mazorodze
road in Waterfalls Harare. Traveling at such a speed on a busy urban road, when
he could not see what was happening on the road, ahead was therefore clearly
negligent. His own words justified the trial Magistrate's continuing with
the canvassing of essential elements. The trial Magistrate asked the convicted
person if he had a right to drive in the manner he did, “not keeping a proper
lookout on the road, not stopping when he was not seeing properly”. The
convicted person's response was that he did not have such a right. A reasonable
driver would have slowed down and stopped. Driving on blindly at 60 km/hr as
the convicted person did, had the effect of endangering the lives of his 18
passengers. There was, no need to alter his plea to one of not guilty.
The law on being dazzled by the
lights of on coming traffic was settled in the case of S v Mandwe
1993 (2) ZLR 233 (SC) @ 241 B - F where KORSAH JA dealing with a sudden
emergency as a result of the appellant's eyes having been dazzled by the lights
of an on coming motor vehicle said;
“And
when the appellant found himself dazzled by approaching headlights, he should
at once have stopped or slowed down to a very slow pace in case there should be
someone, such as the deceased, or something in his path, so that he could stop
or take evasive action. As GUBBAY ACJ (as he then was) remarked in S v Ruzario
1990 (1) ZLR 359 (S) at 366E-F:
"...
if at that stage he found that his vision was somewhat impaired, his duty
was to instantly pull up and wait until he could see properly before proceeding
further, or reduce his speed so as to be able to stop within the range of his
vision" (my emphasis).
The appellant
contended that he had slowed down. The fact is, he was proceeding without a
clear vision of what was in front of him and was unable to stop within the
range of his vision. As McNALLY JA observed in S v Duri 1989
(3) ZLR 111 (S):
"...
slowing down is merely a preparatory step - it is a step which makes it
possible to take evasive action if need arises."
The same view was expressed by
GUBBAY CJ in S v Ferreira 1992 (1) ZLR 93 (S) at 97; 1992 (2)
SACR 425 at 428g-h (ZS) when he said:
"... in
not significantly slowing down, the appellant incapacitated himself from taking
effective evasive action." (emphasis added).
In view of these authorities from
the Supreme Court, the trial Magistrate proceeded with his canvassing of
essential elements, undeterred by the convicted person's purported defence,
guided by the law which he seems to have a good grasp of. He proceeded
correctly. He did not offend the provisions of s 272 (supra). He is
infact supported by a plethora of authorities in the form of precedents from
the highest court of the land.
Cross examination
In view of my finding that the trial
Magistrate correctly continued with his canvassing of essential elements, he
cannot be said to have cross examined the convicted person. Judicial officers
when proceeding in terms of s 271 (2) (b), are free to ask the questions they
deem fit to ascertain the guilty or innocence of an accused person. See the
case of S v Tichaona & Anor (supra) @ page 403 B
where CHATIKOBO J said;
“If the
magistrate thinks that the accused's denial of foresight might be the result of
a lack of appreciation of the import of the question, he should probe further.
There is no exhaustive list of questions, nor any limit to the ways in which
the questions should be put.”
Explanation
The Acting Regional Magistrate is of
the view that the trial Magistrate was aware that he had crossed the red line
hence his unnecessary explanation of the reasons why he convicted the accused.
If I had found that the trial Magistrate erred in continuing with his
canvassing of essential elements the conclusion reached by the Acting Regional
Magistrate would have been justified. In this case one can only say the giving
of an explanation for the conviction was unnecessary, but does not offend
against the sense of justice. The reasons for the conviction were apparent from
the answers the convicted person gave during the canvassing of essential
elements. The trial Magistrate must have acted out of an abundance of caution
which his approach to the canvassing of essential elements reveals he has.
Real and substantial justice
I must conclude by saying
scrutinising and reviewing judicial officers must be guided by the attainment
of the standard of “real and substantial justice” by the work they will be
scrutinising or reviewing. That is what determines whether he should confirm
the proceedings or refuse to certify them as being in accordance with real and
substantial justice or take such other remedial action permitted by the law.
The attainment of “real and
substantial justice” is ascertainable by checking for the things mentioned in
the case of S v Lee Kawareware HH 268 /11 at p 8 of
the cyclostyled judgment where I said;
“The
crucial question should always be has the accused been correctly convicted and
sentenced. If he has the proceedings should be confirmed. If not the
certificate should be withheld.
The main
features to look out for in scrutinising or reviewing proceedings are
therefore;
1)
The correctness of the charge preferred
2)
The agreed facts or state and defence outlines
3)
Compliance with statutory requirements in taking a plea of guilty or in
conducting a trial where the accused pleads not guilty
4)
The acceptance or proof of the facts on which the charge is based
5)
The assessment of evidence i.e matching of the law and the accepted or proved
facts
6)
The trial court's reasons for judgment
7)
The correctness or otherwise of the conviction, and
8)
The justifiability of the charge or sentence as discussed in Chidodo (supra)
Since the codification of our criminal law, all sentences are provided for in
the code or the statute which creates the crime charged. All the reviewing or
scrutinising judicial officer should do is check if the sentence suits the
offence and the offender within the range of sentences provided for in the code
or other statutes”---
The trial Magistrate's handling of
this case has satisfied me that these proceedings are in accordance with real
and substantial justice. I therefore duly confirm them.
BERE J
I have had the privilege of reading
my brother judge, UCHENA J's thoughtful and well reasoned judgment. The
exposition of the law and the legal principles applicable is beyond reproach.
I comment the interactive process between
the trial magistrate and the acting regional magistrate. It is such seemingly
insignificant exercises that enrich or nourishes the development of our
jurisprudence.
I wish to emphasize as correctly
pointed out by the trial magistrate and reinforced by my brother judge that “an
intention to cause an accident” is never an issue in a culpable homicide case
as liability stems from an inference of negligence deriving from proven or
established facts.
As aptly observed by Cooper[1],
“The court
assumes the role of the reasonable man-
'--- and
decides what the reasonable man would regard as just on the facts of the case.
The hypothetical “reasonable man” is personified by the court itself. It is the
court which decides[2].'
It should be noted that the test of
negligence in criminal cases is the same in civil cases hence in a criminal
matter reference can be made to a civil matter and vice versa.
With these few remarks I record my
concurrence with my brother judge, UCHENA J.
BERE J ……………………………..
[1] Motor
Law, Volume Two, Principles of Liability (published by Juta) p 50
[2]
Fibrose Spolka AK'cyjna v Fairbain Lawson Combie Barbour Ltd (1943) AC 32 at 