The
appellant was convicted on his own plea of guilty to a charge of stock theft as
defined in section 114(2) of the Criminal Law (Codification and Reform) Act [Chapter
9:23]. The matter was adjourned prior to sentencing. In between time, the
appellant, then unrepresented, applied for a change of plea unsuccessfully. The
trial court, finding that there were no special circumstances, imposed the
minimum sentence of 9 years imprisonment. The appellant thereafter engaged
legal counsel who applied for alteration of a guilty plea to one of not guilty.
The
appellant's application was made in terms of section 272 of the Criminal
Procedure and Evidence Act [Chapter 9:07].
Three
grounds were advanced in explanation of the tendering on a guilty plea. The
first reason was that the appellant alleged intimidation and undue influence by
the police; secondly, the appellant claimed that he was ignorant of the
consequences of the plea of guilty; and, finally, the appellant contends that
the facts which he admitted to did not disclose an offence in light of the
decision of this court in S v Machokoto 1996 (2)
ZLR 190.
That
application suffered the same fate.
He
now appeals to this court against his conviction.
Five
grounds of appeal are advanced on behalf of the appellant. The first, and main,
ground of appeal is that the court a quo erred in
dismissing the appellant's application to withdraw his plea of guilty. The
remaining grounds are a rehash of the same reasons put forward on the
appellant's behalf regarding his earlier application. The notice and grounds of
appeal appear to be muddled up. The reasons could be that the appellant's legal
practitioner was unsure as to what it was he was now bringing, on appeal, the
refusal to grant the application to withdraw the guilty plea before counsel was
engaged or the subsequent dismissal of counsel's application for changing of
the plea? What would constitute the proper grounds of appeal in the present
appeal? The appellant's apparent confusion would have been much less if counsel
had borne in mind that the reasons given in the final determination by the
court a quo, dismissing the application for
change of plea, provided him with the reason why he was approaching this court
by way of an appeal rather than review.
I will
proceed to determine whether the concession by the respondent was well made.
In
terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07],
the court is required to record a plea of not guilty if any of three situations
become apparent at any stage before sentence is pronounced:
(i)
The first situation is when the court, for any reason, entertains doubt that
the accused is, in law, guilty of any offence to which he has pleaded guilty.
(ii)
The second situation is where the court is not satisfied that the accused has
correctly admitted all the essential elements of the offence or all the acts or
omissions on which the charge is based.
(iii)
Finally, the court is bound to alter the plea to one of not guilty if it is not
satisfied that the accused has no valid defence to the charge.
In
S v Maseko 1986 (2) ZLR
52 (SC) it was held that an accused who wishes to change a plea of guilty after
verdict has been given must discharge an onus showing, on a balance of
probabilities, that the plea was not voluntarily, understandingly, and
correctly made. In order to succeed, the accused only needed to show, on a
balance of probabilities, that the plea was not voluntarily and correctly made.
However, that position was significantly altered by the same court in S v Matare 1993 (2) ZLR
88 (SC) when it was held that the accused has no onus cast on him before his
wish to change his plea can be granted. All that he is required to do is to
give a reasonable explanation of why, in the first place, he has pleaded guilty
to the offence charged. It is only when the court is satisfied that the
explanation tendered by the accused is, beyond a reasonable doubt, false that
the court can refuse to alter the guilty plea to one of not guilty.
In
the present case, once the accused made an application to change his plea
before sentence, as he did, the court a quo was required to
determine whether the explanation he gave for pleading guilty initially was,
beyond reasonable doubt, false.
In
S v Matare 1993 (2) ZLR
88 (SC), after discussing the different approaches dictated by either the
common law or the statutory provisions here and in South Africa, GUBBAY CJ
stated…,:
“Third,
in my view s255A, construed in the context against which it was introduced to
the Act, contains no indication of an intention on the part of the legislature
to cast an onus on the accused. That this is so is evident from the following
factors:
(1)
The phrase "if the court…, is in doubt whether the accused is, in law,
guilty of the offence to which he has pleaded guilty" in para (a), merely
requires that a doubt alone, and not a probability, is sufficient to oblige the
court to change the plea. No onus of proof needs to be discharged before this
safety device becomes operational. See S v Malili en 'n Ander supra at 624A.
(2)
The phrase "if the court…., is not satisfied that the accused has admitted
"all the essential elements of the offence" in para (b) requires no
more than that the accused reveals that he does not admit an essential element
of the offence. See S v Malili en 'n Ander supra at 624C.
(3)
The phrases "if the court…, is not satisfied that the accused has…,
correctly admitted all the essential elements of the offence" and "…,
has no valid defence to the charge", in para (a) (b) and (c) respectively,
deal with the situation where the accused does not dispute any of the essential
elements of his guilt, but during the proceedings it becomes apparent that he
has wrongly or mistakenly pleaded guilty; the court is then obliged to change
the plea. The word "satisfied" means that the court must have a
reasonable doubt about the correctness of an admission or of the conviction it
returned. See S
v Malili en 'n
Ander supra at 625F-I.
It
is apparent to me that sec (s) 255(2)(b) and 255A were enacted to provide
greater protection to the undefended accused by establishing an inquisitorial
procedure, as were sec (s) 112(1)(b) and 113 of the South African Act. See S v Dingile supra at
258B-G. Not only, therefore, is the placing of an onus of proof on the accused
incompatible with such a procedure, it undermines the protection the accused
enjoyed prior to 19 September 1975, when guilty-plea proceedings were framed in
the adversarial mould. The court placed no onus on an accused who wished to change
his plea; a reasonable doubt as to its correctness sufficed. If it became
apparent that an undefended accused had wrongly or mistakenly pleaded guilty,
the court was required to investigate the matter inquisitorially, and, if
necessary, change the plea mero motu. See S v Terblanche 1971 (3)
SA 231 (O) at 235C; S v Hendriks 1977 (4) SA 78(C) at 80F.
In sum, I
can do no better than to repeat the words of VAN ZYL J in S v Fourie supra at 23h, that:
'(there
is) no more of a burden of proof in an application under s113 than the burden
placed on the accused by the common law in these circumstances. In fact, in my
respectful opinion, it is even wrong to talk of an onus at all in these
circumstances because this is not like the ordinary case of the burden of
proof. All that can be expected of an accused is to give an explanation or
clarification of his change of plea, and, if the court is satisfied that it is
a reasonable explanation on clarification, then the plea ought to be changed.
There is no question of a burden of proof that is discharged in such a case (in
translation).'”
It
is clear that the trial magistrate fell into error when he delved into the
merits of the appellant's case in order to determine whether his application
for a change of guilty plea ought to succeed. The question was not whether the
appellant's case, as explained by his counsel during submissions in the
hearing, carried with it any prospects of success. The issue remained whether
he had put forward an explanation for the guilty plea, which, in the
circumstances, was beyond reasonable doubt false. If an unrepresented accused
states that he tendered the plea in the belief that he had no defence and it
appeared, upon being counseled, that there is doubt as to whether the accused
is indeed guilty of the offence charged, in my view, the application ought to
succeed.
In
light of the above, I am of the view that the concession was well made. The
appeal succeeds and the conviction is quashed. The sentence imposed in the
court a quo is set aside. The matter is
remitted back for trial de novo before a
different magistrate.
