This is perhaps a classical case of
how not to conduct a trial based on a plea of guilty in terms of section
271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
In this case, the accused, a 17 year
old juvenile, had consensual sexual intercourse with a fellow juvenile in
contravention of section 70(1) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. The complainant's age was assessed by a medical
practitioner to be between 14½ and 15½. He appeared before the trial magistrate
at Rusape Magistrates court on a plea of guilty. The section requires the trial
magistrate to canvass the essential elements of the offence charged and for him
to satisfy himself that the plea of guilty is an unequivocal admission of the
accused's guilt. The section is designed to avoid the conviction of an
unrepresented accused person through ignorance or inadvertence. It reads:
“271
Procedure on plea of guilty
(1) …,.
(2) When 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 in subpara (i)
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) Enquire 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
the acts or omissions 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.”
In short, a trial magistrate is
obliged to strictly observe the above laid down procedures before convicting an
accused person on his own plea of guilty.
The procedure to be followed was
amply summarised by GUBBAY CJ in the case of William Ndlovu v The
State SC223-91. In that case, the learned CHIEF JUSTICE made it clear
that the section enjoins the trial court, before convicting an accused person
on his own plea of guilty, to:
(a) Explain the charge and the
essential elements of the offence to the accused;
(b) Ask the accused person if he
understands the charge and whether his plea is an admission of all the elements
of the offence;
(c) Record the explanation of the
charge, the essential elements and any explanation the accused may give.
Unlike in the William Ndlovu v The State SC223-91 case, the trial
magistrate, to his credit, substantially complied with the need to maintain a
full and comprehensive record of the proceedings. In canvassing the essential
elements of the offence he, however, misdirected himself and went overboard
resulting in a serious miscarriage of justice. The relevant portion of the
record of proceeding reads as follows:
“E/E
Q. Correct on 26/08/11 you
unlawfully had extra marital sexual intercourse with a girl under the age of
16?
A. Yes.
Q. You knew very well she
was below the age of 16?
A. I was not aware.
Q. Does she go to school?
A. No.
Q. What is she doing for a
leaving?
A. She is a vendor.
Q. But you could see that she was
a young girl?
A. No.
Q. Did you pay lobola for her?
A. No.
Q. So you knew very well what
you were doing was unlawful?
A. No Yes.
Q. Any right to behave in that
manner?
A. No.
Q. Any defence to offer?
A. No.
Guilty as charged
PP I intend to tender medical
report.
Q. Were you served with a
medical affidavit?
A. Yes.
Q. Did you read it?
A. I did not read it.
Q. Why?
A. I did not have the time to
read.
Q. When were you served?
A. June last year.
Q. It's almost a year now?
A. I was only shown once.”
Without much ado, the affidavit was
then read to the accused, tendered in evidence as an exhibit and he was then
found guilt - purportedly on his own plea of guilty. It is needless to say that
before an accused person can be found guilty on his own plea of guilty the
court must satisfy itself that his plea of guilty is an unequivocal admission
of his guilt.
The purpose of canvassing essential
elements of the offence is for the court to satisfy itself that the accused is
tendering a genuine plea of guilty from an informed position of his liability
at law. Where an accused person pleads guilty but goes on to deny an essential
element of the offence charged, the court is duty bound to alter the plea to
one of not guilty and proceed to trial in the normal way. It is not the duty of
the presiding magistrate to panel beat the accused into submission in order to
convict the accused on his own plea of guilty as happened in this case.
It is trite that an act does not
constitute guilt unless done with a guilty frame of mind. Thus, in this case,
it was not enough for the accused to admit that he had sexual intercourse with
the minor child below the age of consent. He had also to admit the mental
aspect of the offence in the sense that he intentionally had sexual intercourse
with the minor child well knowing that she was below the age of 16 years.
To this end section 70(3) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that; “It
shall be a defence to a charge under subsection (1) for the accused person to
satisfy the court that he or she had reasonable cause to believe that the young
person concerned was of or above the age of sixteen years at the time of the
alleged offence.”….,.
It follows, therefore, as a matter
of logic and common sense that once the accused had stated that he did not
appreciate that the complainant was below the age of sixteen years at the
material time, he was proffering a valid defence to the charge. In legal
parlance, he was denying that he had the requisite mens rea, that is to say, the necessary intention to commit the
crime. At that juncture, the trial magistrate was duty bound to alter the plea
of guilty to one of not guilty instead of embarking on a lengthy
cross-examination of the accused apparently calculated to extort a confession
from him so as to avoid the rigors of a fully-fledged trial.
For that reason alone, I come to the
conclusion that it was a serious misdirection and fatal miscarriage of justice
for the trial magistrate to convict an accused person on a plea of guilty in
circumstances where he was tendering a valid defence to the charge. That being
the case, the conviction and sentence cannot stand. It is accordingly ordered:
1. That the conviction and sentence
be and are hereby quashed and set aside.
2. That the decision as to whether
or not to prosecute the accused person on the same charge be left entirely to
the discretion of the Attorney-General.
3. In the event that the accused is again
prosecuted and convicted on the above charge the sentencing court must take
into account the period of community service already served by the accused.
