MUTEMA J: This matter emanated from Mvurwi and found its way to my desk via
the automatic review process. I discerned a number of irregularities
which prompted me to write to the trial magistrates thus:
“Two issues are of concern to me:
1.
The two accused persons were each charged with four counts with each count
framed thus: “charged with contravening s 131 as read with 113 of the Criminal
Law Codification and Reform Act [Cap 9:23] “Unlawful entry into premises and
theft.” The allegations were that on four occasions each accused
unlawfully entered the various complainants' dormitories and stole property
therefrom.
Sections 113 and 131 of [Cap
9:23] create two stand alone offences of theft and unlawful entry into premises
respectively. Either of the two crimes cannot be read with the
other. Where one commits the offence of unlawful entry into premises in
contravention of s 131 and steals property therefrom, that offence of unlawful
entry into premises is then committed in aggravated circumstances and one must
be charged only with the offence of unlawful entry into premises in aggravating
circumstances in contravention of s 131 (1)(a) as read with subs (2)(a) or (b)
or (c) or (d).
In the result, were the
four counts properly framed?
2.
(a) Both accused pleaded guilty to
all four counts. After taking the accused
through the essential elements the trial magistrate on verdict wrote:-
“V-Guilty as
pleaded both counts and both accused”.
Both counts mean two counts yet
there were four counts. Whence did the “guilty as pleaded both counts”
come?
(b)
As if that was not enough misdirection, regarding sentence, the trial
magistrate wrote:-
“S- a 1 (for accused 1) – 2
years imprisonment (3 months suspended on Gve 627/12 brought into effect and
incorporate (sic) in the 2 years imprisonment).
A 11 (for accused 2) – 1 year imprisonment”.
(c) The trial magistrate did not,
following production of accused 1's
certificate of previous
conviction, bother to find out from him whether he was admitting the previous
conviction and if he had any cause to show why the suspended sentence should
not be brought into operation.
(d)
Further, the trial magistrate did not indicate in respect of which count or
counts each accused person's sentence related to. Was this proper?
Could I have the trial magistrate's comments?”
The trial magistrate's response was as follows:
“Review
Minute: State vs Edward Maripfonde and Gift Banda MV 921-2/12
1. In relation to the charge
contravening section 131 as read with 113 of the
criminal law codification and
reform act I stand guided by the Honourable Judge's decision. This has
been a grey area and has created a lot of confusion with some learned Judges
preferring count 1 unlawful entry, count 11 Theft other review matter with
unlawful entry and theft have been confirmed. However your decision is
quite commendable.
2. (a) There
was an oversight the count took the accused persons through the essential elements
of the 4 counts which they were facing instead of indicating verdict- Guilty as
pleaded all 4 counts for both accused persons. The court proceeded to
indicate guilty as pleaded both counts.
(b)
In failing to question the accused person about the certificate of previous
conviction I erred this was a serious misdirection. I also failed to
indicate to which count the sentence was relating to. Intended to treat
all 4 counts as one for sentence globular approach since these offences were
committed on single day, almost at the same time, the offence being similar in
nature i.e. the essential elements.
It is my humble submission
that if the matter be referred back to me so that I recall the accuseds explain
to them that the guilty plea was in respect of all 4 counts, explain the
essence of the previous conviction to the first accused – show cause why it
should not be brought into effect and then sentence the accused accordingly.”
As regards the first issue supra, I have noted that it is not settled
as to what charge(s) should be preferred in a case where one unlawfully enters
into premises and steals property therefrom. In the majority of cases
depicting the scenario postulated above the prosecution is preferring two
separate charges, viz contravening section 131 (1) (unlawful entry
into premises) and contravening section 113(1) (theft) of the Criminal Law
(Codification and Reform) Act, [Chapter 9:23]. Most Judges have found this
acceptable and have confirmed the proceedings.
It has been indeed a grey area as stated by the trial magistrate in his
response supra. However, I have not been privy to the other
scenario he alluded to, viz that some Judges have been confirming
proceedings such as in casu where the charge is framed “charged with
contravening section 131 as read with section 113 of the Criminal law
(Codification and Reform) Act, [Chapter 9:23] (unlawful entry into premises and
theft).
As observed supra in my query to the trial magistrate, the two
sections 113 and 131 of [Chapter 9:23] create two separate or two stand alone
offences of theft and unlawful entry into premises respectively. Neither
of these two crimes can be read with the other as was done in case at
hand. Probably the old adage that old habits die hard can be ascribed to
the failure by the prosecution to separate these two now distinct offences,
emanating from the old offence called housebreaking with intent to steal and
theft. That old offence has now been codified into two stand alone offences.
It is accordingly procedurally both wrong and incompetent to charge one as read
with the other.
I will stop short of holding that it is also wrong and incompetent to charge
one with both unlawful entry into premises in contravention of section 131 and
theft in contravention of section 113 of the Criminal Law (Codification and
Reform) Act, [Chapter 9:23] in the scenario I postulated above without
according the matter the benefit of informed sufficient argument by the
relevant stakeholders. However, it is my considered humble and respectful
opinion that by creating the two stand alone offences of unlawful entry into
premises (section 131(1) and theft in section 113) and then providing in
section 131(1) (a) as read with subsection (2) (e) of that section, the
Legislature was clear that it intended those two offences to be stand
alone. Where one unlawfully enters premises and steals property
therefrom, the aspect of theft remains encompassed in section 131 and should
not be ascribed separately to section 113. A close reading of section 131
should make this not difficult to comprehend.
The section reads:
“131 Unlawful entry into premises.
(1) Any person who, intentionally and
without permission or authority from the
lawful occupier of the premises
concerned, or without other lawful authority, enters the premises shall be
guilty of unlawful entry into premises and liable-
(a)
to a fine not exceeding level thirteen or not exceeding twice the value of any
property stolen, destroyed or damaged by the person as a result of the
crime, whichever is the greater, or imprisonment for a period not exceeding
fifteen years, or both, if the crime was committed in any one or more of the
aggravating circumstances set out in subsection (2); (my emphasis) or
(b)
in any other case, to a fine not exceeding level ten or not exceeding twice the
value of any property destroyed or damaged by the person as a result of the
crime, whichever is the greater, or imprisonment for a period not exceeding ten
years, or both.
(2)
For the purposes of paragraph (a) of Subsection (1) the crime of unlawful entry
into premises is committed in aggravating circumstances, if on the occasion on
which the crime was committed, the convicted person-
(a) entered a dwelling house; or
(b)
knew were people present in the premises; or
(c)
carried a weapon; or
(d)
used violence against any person, or damaged or destroyed any property, in
effecting the entry; or
(e)
committed or intended to commit some other crime.”
The wording of the statutory provision cited above is so clear and unambiguous
that it admits of no other canons of interpretation save its ordinary grammatical
meaning. This meaning is that where one unlawfully enters into premises
and steals property therefrom and the premises were a dwelling house, or one
knew that there were people in the premises or one carried a weapon or used
violence against anyone in effecting the entry, there is absolutely no
procedural legal justification to charge one with two offences of unlawful
entry into premises and theft. The proper charge is simply one of
unlawful entry into premises in aggravating circumstances in contravention of
section 131(1) (a) as read with subsection (2) (a) or (b) or (c) or (d) of this
Code in respect of each count.
In the event, if the above interpretation be correct, which I respectfully
think it is, then on the facts of the present case of the accused persons
unlawfully entering on each of the four occasions, St, Alberts High School
Girls' quarters and stealing property therefrom, each accused should simply
have been charged with four counts of unlawful entry into premises in aggravating
circumstances in contravention of section 131 (1)(a) as read with subsection
(2) (a) of the Criminal Law (Codification and Reform) Act, [Chapter
9:23]. Since all the essential elements relevant to the proper offence
were canvassed with both accused persons, there will be no prejudice occasioned
to each if each count is corrected to read the proper one as crafted above and
each count is accordingly so amended.
Regarding query 2(a) supra, it is clear that this was as an
error in grammar of the English language -not a mother tongue. The
verdict should read- each accused, guilty as pleaded all four counts. The
verdict is accordingly so amended as no prejudice will be suffered by either
accused as a result.
Regarding query 2(b) and (c), supra, in terms of section 327 (3) of
the Criminal Procedure and Evidence Act, [Chapter 9:07] the trial magistrate
was enjoined to ask accused whether he admitted the previous conviction or
not. And as per practice, to also ask accused 1 if he had any cause to
show why the suspended sentence should not be brought into effect. This
was not done. Also, in terms of query 2 (d) supra the trial
magistrate did not indicate in respect of which count(s) each accused person's
sentence related to.
In the result, the trial magistrate is directed to recall both accused persons
and do the following:
(1)
explain to them the two amendments I have effected above, viz relating
to the correct charge for all counts;
(2)
explain to both accused that the correct verdict is: each accused is found
guilty as pleaded in respect of all the four counts;
(3) explain to
both accused that all the four counts were treated as one for sentence; and
(4)
in respect of accused one, an enquiry be made whether he is the person so
alleged to have been previously convicted and if so to show cause why the
suspended sentence of 3 months imprisonment should not be brought into
operation.
Thereafter the proceedings shall be re-submitted for review.
Mutema
J.................................................................
Takuva
J agrees.........................................................
