Criminal Review
MAWADZE
J: Both matters were dealt with by the same trial magistrate who referred the
matters for scrutiny. The learned
scrutinizing Regional Magistrate was unable to confirm the proceedings in both
matters as in accordance with real and substantial justice as she believes
there was a patent failure of justice.
Both matters were referred to this court for review.
The facts of each of the
case are as follows;
1. STATE
v WESTON JOWO MUPFUPI
The accused was arraigned
before the trial magistrate facing three counts which are as follows;
In count 1 the accused
was charged with fraud in contravention of s 136 of the Criminal Code [Cap 9:23].
In count 2 the accused
was charged with driving a motor vehicle without a driver's licence in
contravention of s 6(1) as read with s 6(5)
of Road Traffic Act [Cap 13:11].
In count 3 the accused
was charged with bribery in contravention of s 170 (1) of the Criminal Code [Cap 9:23].
The facts giving rise to
all the three counts are as follows;
The accused who is 24
years old and resides at Mount Bokota Farm Macheke left Murehwa Business Centre
on 2 September 2014 at about 1700 hours driving a Nissan Caravan Registration
Number ACQ 7982. The accused had 15
passengers on board plying the Macheke route. While at Zinwa Offices in Chinake
village the accused stopped his motor vehicle in the middle of the road and
switched off the engine. Accused
disembarked as he checked another truck parked by the road side which had a
breakdown. Two police officers driving a
Land Rover Defender Registration Number 4750 arrived at the scene but could not
proceed as accused's motor vehicle blocked the road. The accused was asked to why he was parked in
the middle of the road and to produce his driver's licence.
In relation to count 1
the accused produced a certificate of competency issued in the name of Tatenda
Jowo Mupfupi National I.D No 63-2046435 T47 serial no 957143B purporting to be
his when in fact it belongs to accused's brother. The Police Officer asked the accused to
produce his national identification card and he failed to do so claiming it was
at his house. The police then drove to
the accused's house with the accused to collect his identity card but on the
way the accused confessed that the certificate of competency he had produced
was not his. This is the basis for the
charge of fraud.
This confession leads to
count 2 which relates to driving a commuter omnibus without a driver's licence.
In relation to count 3 it
is alleged that as the police officers took the accused to his house for him to
produce his identity card the accused produced a US$10-00 note serial number MF
5159812A and handed it over to Detective Inspector Mapepeta as a consideration
to induce him not to arrest the accused hence the offence of bribery.
The accused pleaded
guilty to count 2 of driving without a licence and pleaded not guilty to count
1 – fraud and count 3 – bribery.
In count 2 the accused
was duly convicted on his own plea and sentenced to 6 months imprisonment. In addition the accused was prohibited from
driving motor vehicles in respect of the class to which commuter omnibuses
relate for life. The sentence is proper
in view of the penalty provisions of the Road Traffic Act [Cap 13:11] as no special circumstances were found.
Nothing turns in respect
of count 1, fraud and count 3, bribery as accused was discharged at the close
of state case in both count 1 and count 3 and acquitted.
The query raised by the
regional magistrate in respect of count 2 is that the trial magistrate did not
properly canvass the essential elements of the offence hence the conviction is
improper.
The learned regional magistrate seems to
have taken issue with the answer the accused gave to this question;
“Q: Do you admit that you drove the vehicle at
the material time when you were not a holder of a valid driver's licence and
statutory requirements concerned.
A: Yes.”
While
the bit relating to “statutory requirements concerned” is unclear and
irrelevant, the answer the accused was expected to give as he had no driver's
licence was “No” instead of “Yes”.
The trial magistrate in
response to this query or anomaly explained that he or she made a genuine error
by recording “Yes” instead of “No”.
I am inclined to accept
the trial magistrate's explanation. This
is so in light of the other questions put to this accused in relation to
driving without a licence and the answers accused gave. The following is recorded;
“Q: Do you admit that on 2 September 2014 and
along Murehwa-Chamapango Road, Murehwa you drove a Nissan Caravan, Public
Service vehicle with registration number ACQ 7982.
A: Yes.
Q: Are you a holder of the requisite
driver's licence for the class concerned.
A: No.
(emphasis is mine)
Q: Did you have a right to drive the Public
Service vehicle with a driver's licence.
A: No.
(The trial magistrate explained that it was meant to
be “without” rather than
“with” in light of the question underlined above)
Q: Do you have any defence to offer.
A: The licence which was on the dash board in
the vehicle belongs to my brother, it is not mine. I don't have any defence or driver's
licence.” (sic)
V: Guilty as pleaded.”
While it is clear that
the trial magistrate was not alert in recording the accused's answers the fact
remains that the accused was properly convicted of driving a commuter omnibus
without a licence. The charge was put to
the accused and he admitted that indeed he did not have the driver's
licence. The facts in relation to count
2 were read to him and he agreed with the facts. It is clear from the totality of his answers
to the questions put to him by the trial magistrate that the accused admitted
that he had no driver's licence and that the one he had belonged to his
brother. The errors by the trial
magistrate in recording “YES” instead of “NO” and “with” instead of “without”
would not distract from this fact. There
is therefore no miscarriage of justice in convicting the accused in count
2. In fact it would be a serious
miscarriage of justice to set aside the conviction in count 2.
I am unable to appreciate
the query raised as to why mitigation was recorded after the accused pleaded
guilty to count 2 before the trial proceedings in count 1 and 3 for which
accused was subsequently acquitted. The
learned regional magistrate does not refer to any relevant provisions of the
law which were violated or how this caused prejudice to the accused. I find no merit in respect of this
query.
2.
STATE v CLIVE MUNETSI
The accused was convicted
after a protracted trial of the offence of assault in contravention of s 89 (1)
(a) of the Criminal Code [Cap 9:23].
The proved facts are as
follows.
The 36 year old accused
resides in Munetsi homestead in Deera Village Chief Chikwaka and the 36 year
old complainant resides at Devonia Farm where he is a farmer. There was a
dispute between the accused and complainant as the accused was allegedly
carrying out mining activities on complainant's farm. On 2 July 2014
complainant was driving his motor vehicle at the farm when he saw the accused.
Complainant stopped the motor vehicle and enquired from accused as to why he
was mining in complainant's farm when the court was seized with the dispute
between them. The accused was not amused and proceeded to assault the
complainant in the following manner;
i)
by poking the complainant with his fingers
on complainant's head.
ii)
by holding and dragging the complainant
out of the vehicle
iii)
by hitting the complainant with clenched
fists on the mouth and twice on the back
iv)
by throttling complainant and suffocating
him.
The accused was
restrained by one Chamunorwa Mavhunga. The complainant was medically examined
on 4 July 2014 and the Doctor observed that the complainant had the following
injuries;
(a) abrasions
on the right hand
(b) loose
incisor tooth
(c) that
severe force was used to inflict the injuries described as serious as
complainant would lose the tooth.
The accused was sentenced
to pay a fine of US$120-00 or in default of payment 3 months imprisonment. In
addition 3 months imprisonment were wholly suspended on the usual conditions of
good behaviour.
I am again unable to
appreciate the query or issues raised by the learned Regional Magistrate in
this case.
It would appear that the
learned Regional Magistrate is satisfied that on the evidence led accused was
properly convicted of assault. Further, no issue is taken as regards the
appropriateness of the sentence imposed.
The learned regional
Magistrate raises some procedural issues without explaining whether such
alleged procedural irregularities are fatal to the proceedings. Let me comment
on each of the issues raised.
(a) The
failure to cite the provisions of the Criminal Procedure and Evidence Act [Cap
9:07] after asking the accused to explain or give his defence outline:-
I am unable to appreciate
this query. After the trial Magistrate asked the accused to give his defence
outline the accused gave a detailed defence covering about 3 pages of
handwritten notes recorded by the trial magistrate. What then is the issue
raised by the learned Regional Magistrate? It is clear the accused understood
what a defence outline is and proceeded to give one. The citation of the
relevant sections would be unhelpful to a lay person like the accused. This
query clearly lacks merit and the learned Regional Magistrate is advised not to
raise such frivolous issues with no bearing to real and substantial justice.
(b) That
the exhibits were improperly produced:-
This presumably relates to the medical
report.
Again the query lacks
merit. The record of proceedings on p 8 of handwritten notes reflect the
following;
“State
applies to produce the medical report affidavit in evidence.
No
objection from the accused. He had been served with the affidavit.
Medical
report accepted as Exh I.”
The Trial Magistrate
should be praised for keeping such a detailed record of proceedings. The
learned Regional Magistrate does not explain which provisions of the criminal
procedure and Evidence Act [Cap 9:07]
were violated, how they were violated, how that would prejudice either the
State or the accused's case and how it affects the propriety of the conviction
of the accused on the charge of assault in view of both the oral evidence led
and the medical evidence. No possible remedy is suggested by the learned
Regional Magistrate.
I find no merit in
relation to this query.
(c) That
after the close of the defence case both the State and the accused were not
invited to address the court or make submissions:-
The learned regional
Magistrate does not cite the relevant provision in the Criminal Procedure and
Evidence Act [Cap 9:07] which makes
it mandatory for the state and the defence to addresses the court at this stage
and that failure to do so is fatal to the proceedings. I do not believe that
this query deserve further comment.
In the result;
IT IS ORDERED THAT:
1. The
proceedings in CRB MW 613/14 be and are hereby confirmed as in accordance with
real and substantial justice.
The proceedings in
CRB J 162/14 be and are hereby confirmed as in accordance with real and
substantial justice.
