I
deal first with the additional grounds of appeal advanced at the hearing of the
appeal as these present an interesting submission from counsel.
The
doctrine of issue estoppel has been embraced by the Supreme Court as part of
the law of Zimbabwe under the general rule of public policy that there should
be finality in ...
I
deal first with the additional grounds of appeal advanced at the hearing of the
appeal as these present an interesting submission from counsel.
The
doctrine of issue estoppel has been embraced by the Supreme Court as part of
the law of Zimbabwe under the general rule of public policy that there should
be finality in litigation. The doctrine prevents a party to civil proceedings,
except in certain circumstances, from raising a contention of fact or of legal
consequences of facts, where he raised the contention as an essential element
of his case in previous civil proceedings between the same parties or their
predecessors in title, and the contention was found by the court, in a final
judgment in those proceedings, to be incorrect, unless further material which
is relevant to the correctness or incorrectness of the assertion, and could
not, by reasonable diligence have been adduced by that party in the previous
proceedings has since become available to him. See Willowvale Mazda Motor Industry (Pvt) Ltd v
Sunshine Rent-a-Car (Pvt) Ltd 1996 (1) ZLR 415 (SC); Galante v Galante (2) 2002 (1)
ZLR 144 (HC).
English
Law recognizes that the same issue should not be open to successive
determinations: nemo debit bis vexari pro una et eadem causa and interest rei publicae ut finis litium sit (“no one should be
disturbed twice in the same matter” and “it is in the public interest that
lawsuits should have an end”). These maxims underpin the doctrine of res judicata, which has two main applications, “cause of
action estoppel” and “issue estoppel”. The House of Lords, in Arnold v National Westminister Bank p.l.c. (1991) 2 W.L.R.
1177, was concerned only with the latter species of estoppel, but LORD KEITH
took the trouble to define both in the following passages…., -
“Cause
of action estoppel arises when the cause of action in the later proceedings is
identical to that in the earlier proceedings, the latter having been between
the same parties or their privies and having involved the same subject matter…,.
(The) bar is absolute in relation to all points decided unless fraud or
collusion is alleged…,. Issue estoppel may arise when a particular issue
forming a necessary ingredient in a cause of action has been litigated and
decided and in subsequent proceedings between the same parties involving a
different cause of action to which the same issue is relevant one of the
parties seeks to re-open that issue.”
Cause
of action estoppel binds more tightly than issue estoppel since the latter is
relaxed where special circumstances require (which are not confined to fraud
and collusion). The House of Lords, faced with the question whether a
change in case law might justify a departure from issue estoppel, decided to
endorse a new exception.
There
are two forms of the doctrine of res judicata: cause of action estoppel and
issue estoppel. Both operate where the court has adjudicated the cause of
action between two or more parties and one of them seeks to re-litigate on the
same facts. Where the cause of action is the same, cause of action
estoppel operates to prevent any litigation of any matter that was raised or
should have been raised in the prior proceeding. Where the cause of action in
the two proceedings is different, issue estoppel operates to prevent any
litigation of any issue determined in the prior proceedings.
LORD
GUEST in Carl-Zeiss Stifting v Rayner and Keeler Ltd [1966] 2 AllE.R.536…, stated the
requirements of issue estoppel as -
“…,.
(1) That the same question has been decided; (2) That the judicial decision
which is said to create the estoppel was final; and, (3) That the parties to
the judicial decision or their privies were the same persons as the parties to
the proceedings in which the estoppel is raised or their privies…,.”
In
R v Hagan [1974] 2 All ER 142 JUSTICE HOGAN offered a
definition of issue estoppel thus -
“Issue
estoppel can be said to exist when there is a judicial establishment of a
proposition of law or facts between parties to earlier litigation and when the
same question arises in later litigation between the same parties. In the later
litigation, the established proposition is treated as conclusive between those
parties.”
It
is clear that issue estoppel is related to, but differs from, res judicata.
A plea of res judicata asserts that the cause of
action is the same in both the prior and the current proceeding, so that the
current proceeding should not continue, whereas issue estoppel may be raised
where the causes of action in the two proceedings are different but the same
particular factual issue has arisen in both.
In
criminal proceedings, the principles of res judicata are given effect through
the pleas of autrefois acq'uit and autrefois convict.
Where those pleas are not available, issue estoppel arises where
the accused has been finally acquitted of a criminal offence arising out of
certain conduct, is charged with a different offence, and for some reason the
facts surrounding the earlier charge become relevant. Issue estoppel
"prevents the Crown from calling into question issues determined in the
accused's favour in an earlier proceeding." See MARTIN L. FRIEDLAND, Double Jeopardy (Oxford: Claredon Press, 1969)….,.
It
seems settled now in English Law that an accused can invoke the principle of
“issue estoppel” against the prosecution. This is the view expressed by LORD
MORRIS, LORD HUDSON and LORD PEARCE in Connolly v Director of Public Prosecutions
[1964] 2 All ER 40: 1964 A.C. 1254. The position in Zimbabwe seems to be that
the plea of issue estoppel in criminal law may only be raised by the State
against the accused in a criminal trial. However, that common law position has
been severely curtailed by statutory limitations placed on that right by such
provisions as section 290 of the Criminal Procedure and Evidence
Act [Chapter 9:07] and section 324 of the Criminal Procedure and Evidence Act [Chapter 9:07].
S v
Gabriel 1971 (1) SA 646 (RAD); R v Kriel 1939 CPD 221.
In
light of the foregoing, I respectfully find myself in disagreement with the
contention that the doctrine of issue estoppel is of application in appeal
matters as contented by counsel for the appellant.
I
hold this view on the basis that the pleas of autrefois
acq'uit and
autrefois convict
sufficiently deal with the situations for which, at common law, the
doctrine of res judicata would have been applicable
in civil matters. In any event, there is ample authority for the proposition
that statutory provisions in procedural law have filled the gap which is dealt
with by the common law doctrine of issue estoppel in England.
Further,
applying the civil cases requirements of issue estoppel viz;
(i)
That the same question has been decided;
(ii)
That the judicial decision which is said to create the estoppel was final; and
(iii)
That the parties to the judicial decision or their privies were the same
persons as the parties to the proceedings in which the estoppel is raised or
their privies.
The
second and third elements are unproblematic - if the accused was previously
acquitted and either the acquittal was upheld on appeal or the State's appeal
rights expired, the acquittal is final.
In casu, the parties - the
State and the particular accused person (now the appellant) – are the same. But
the first requirement, whether the factual issue is the same, and, indeed,
whether it has been decided, is often difficult to determine. I observe,
however, that counsel for the appellant attached the State submissions in the
bail application hearing rather than that court's determination. No statutory Rule
of Court nor (was) any rule of evidence was relied upon to attach the
submissions by State counsel in the bail application. The filing of the
submissions is irregular in the extreme as they fall foul of the Rules of Court.
In any event, as I have respectfully demonstrated, no issue relevant to the present
appeal came up for decision in the application for bail nor was any such issue
finally determined. The determination was not on the same issue for which this
appeal was lodged but on a different issue, that is, whether the appellant is a
suitable candidate for bail.
It
was contented by counsel for the appellant, that, because the respondent had
taken a considered view on the guilt of the appellant, which he expressed
before a judicial forum, therefore the respondent, in the present matter, the
Attorney-General, cannot now put forward a different view of the same facts.
With
respect, I disagree with this contention.
Assuming
for a moment that the doctrine exists in criminal law under the guise of autrefois acquit and autrefois convict my
respectful view is that the issue for determination, in casu, is different from the issue for determination
before the application for bail. As pointed out in the article by MARTIN L.
FRIEDLAND, Double Jeopardy (Oxford: Claredon
Press, 1969), the doctrine applies in order to prevent the State from calling
into question issues determined in the accused's favour in an earlier
proceeding. The doctrine operates as a shield, during trial, rather than a
sword, so to speak. It would, as such, be of limited application in an appeal.
The reason for the limited application of the doctrine in appeals ought to be
understood in the context that an appeal is confined to the findings of the
trial court rather than some other post-trial opinions expressed by different
officers under different proceedings. As the question of bail was not before
the trial court, the trial court, therefore, made no determination regarding
bail.
The
issue before the bail application was whether the appellant was entitled to
bail pending appeal. Whatever submissions the respondent made in the bail
application, the issues before that forum were far removed from issues which
are now squarely placed before this court as set out in the grounds of appeal.
Presently, the issue before this court is whether the appellant was properly
convicted and sentenced. The argument by counsel for the appellant is, if I may
put it rather crudely, that where the Attorney-General (through his
representative) took the view that there are prospects of success on appeal,
for one reason or another, then he cannot be heard to argue in favour of a
finding that the appellant was properly convicted in the appeal hearing. The
stronger argument against the appellant under this head is that no
determination of his guilt or innocence was ever made by the court in the bail
application hearing.
The additional ground of appeal is, therefore,
for these reasons, dismissed.
