Criminal
review
MAFUSIRE
J: The accused was charged with two counts. The first count was
contravention of s 6(1)(a) of the Road Traffic Act [Cap
13:11],
i.e. driving a motor vehicle on a road without a valid licence. To
this charge he pleaded guilty. The second count was contravention of
s 52(2) of the same Act, i.e. driving a vehicle on a road
negligently. To this count the accused pleaded not guilty.
The
circumstances of the offences were that the accused was driving a
motor vehicle on a road without a driver's licence. At a robot
controlled intersection he turned right in front of oncoming traffic.
There was a collision. Police were called. The accused was arrested
and eventually charged as aforesaid.
The
accused's plea of guilty to count 1 was taken in terms of s
271(2)(a) of the Criminal Procedure and Evidence Act, [Cap
9:07]
(“the
CP & E Act”).
He was sentenced to a fine of $50-00, or in default of payment,
twenty days imprisonment.
A
trial was conducted in respect of count 2. The accused's defence
was that the driver of the other vehicle entered a red robot. He said
when he arrived at the intersection the robot in front of him was
green. He was turning right but had to give way to oncoming traffic.
The robot changed to amber. He commenced his turn. It changed to red
whilst he was still in the intersection. The other vehicle was coming
from the opposite direction and proceeding straight on. It was
travelling at an excessive speed. It crashed into his vehicle and
stopped some twenty meters away from the point of impact.
Despite
his story, the accused was nonetheless convicted. He was sentenced to
six months imprisonment of which three months imprisonment was
suspended for five years on condition of good behaviour. The
remaining three months imprisonment was suspended on condition the
accused performed community service.
On
scrutiny, the regional magistrate declined to certify the proceedings
as having been in accordance with real and substantial justice. I
paraphrase his reasons as follows:
-
The
reasons for sentence in count 2 (negligent driving) did not allude
to the degree of negligence;
-
On
count 1, the accused was sentenced to a fine which was in excess of
level three yet his plea had been taken in terms of s 271(2)(a) of
the CP & E Act;
-
There
was no indication in the record that the State had closed its case
when the defence case opened;
-
The
endorsement that the State had closed its case appeared only at the
end of the defence case.
-
The
accused was asked if he wished to call any witnesses only once at
the start of the defence case, yet it would have been helpful if he
had been asked again after the cross-examination of himself by the
State, given the effects of the cross-examination.
The
trial magistrate had responded. Again I paraphrase his responses as
follows:
-
The
issue of the degree of negligence had been adequately addressed in
the main judgment during the analysis of the evidence and the
particulars of negligence. The sentence had been arrived at after
considering the accused's personal circumstances, the offence and
the surrounding circumstances;
-
The
accused had been charged under s 52(2) of the Road Traffic Act. That
section clearly provides for a fine of up to level 10, or
imprisonment of up to one year, or both such fine and imprisonment.
However, it was a mistaken belief that the level of the sentence
under s 271(2)(a) of the CP & E Act was $100.
-
The
categorisation of the degrees of negligence is confined to cases of
culpable homicide arising from traffic accidents and where an
accused person is charged with contravention of s 49 of the Criminal
Law (Codification & Reform) Act, [Cap
9: 23]
(“the
Criminal Code”).
Such categorisation would then be necessary to ascertain the degree
of negligence in relation to the categories specified in sections
51, 52 and 53 of the Road Traffic Act. In a case where the accused
is charged under the Road Traffic Act itself, there is no need to
repeat the provisions under which he is charged as the degree of
negligence would be clearly spelt out. The case of State
v
Mapeka & Anor
2001 (2) ZLR 90 (H) clearly outlines the assessment of the degrees
of negligence necessary in relation to cases of culpable homicide
where the accused is charged under s 49 of the Criminal Code.
-
It
was a mistake to have omitted to endorse that the State had closed
its case. It was also a mistake to have endorsed at the end of the
defence case “close of state case”.
-
The
accused had been asked after the opening of the defence case whether
he would be calling any witnesses so that the court could know in
advance the number of witnesses and their relevance. It is not
understood how the stage at which the court asks an accused person
whether or not he intends to call any witnesses, i.e. either at the
opening of the defence case, or after cross-examination of himself,
may alter his defence.
The
trial magistrate concluded his responses by accepting to stand guided
and corrected. But having declined to certify the proceedings, the
scrutinising magistrate referred the record of proceedings to this
court in terms of s 58(3)(b) of the Magistrates Court Act, [Cap
7:10].
I
now deal with the matter in the manner and sequence below.
Regional
magistrate's power of scrutiny
In
terms of s 58 of the Magistrates Court Act, the court of a regional
magistrate is empowered to scrutinise automatically the criminal
proceedings of any court of the magistrate, other than itself, where
the sentence imposed on a convicted person who is not represented at
the trial, or which is not a company, is imprisonment for any period
in excess of three months, but not exceeding twelve months, or is a
fine in excess of level four ($100), but not exceeding level six
($300).
What
is scrutiny?
In
terms of section 58(3) of the Magistrates Court Act a scrutinising
magistrate is required to satisfy himself that the proceedings of the
trial court are in accordance with real and substantial justice. The
section reads:
“(3)
The regional magistrate shall, as soon as possible after receiving
the papers referred to in subsection (1), upon considering the
proceedings –
-
if
he is satisfied that the proceedings are in accordance with real and
substantial justice, endorse his certificate to that effect upon the
proceedings which shall then be returned to the court from which
they were transmitted;
-
if
it appears to him that doubt exists whether the proceedings are in
accordance with real and substantial justice, cause the papers to be
forwarded to the registrar, who shall lay them before a judge of the
High Court in chambers for review in accordance with the High Court
Act [Cap
7:06].”
Where
the record has been placed before him for review, the judge has also
to satisfy himself that the proceedings were in accordance with real
and substantial justice. Section 29(2) of the High Court Act:
“(2) If
on review of any criminal proceedings of an inferior court or
tribunal, the High Court considers that the proceedings-
-
are
in accordance with real and substantial justice, it shall confirm
the proceedings;”
If
he is not satisfied that the proceedings were in accordance with real
and substantial justice, the reviewing judge exercises any of the
powers set out in paragraph (b) of subsection (2) of s 29. These
include the power to alter or quash the conviction; reducing the
sentence; correcting the proceedings, et
cetera,
subject to the guidelines set out therein.
Commendably,
the legislature refrained from defining what “real
and substantial justice”
means. But case law has. What is “real
and substantial justice”
is left entirely to the scrutinising magistrate or reviewing judge.
He makes a value judgment and exercises his judicial discretion, of
course, guided by certain principles. In the case of S
v
Chidodo & Anor
GREENLAND J said:
“The
power of certifying proceedings as being in accordance with real and
substantial justice is an additional power more particularly viewed
as a prerogative. It seems clear from the words employed, ie 'in
accordance with real substantial justice', that a judge (and
regional magistrate) is required to make a value judgment on the
question. He must be satisfied that everything that transpired at the
criminal trial conforms with the notions of justice that these words
imply.”
The
test of what is real and substantial justice is an objective one.
What is considered to be just depends on the norms and sense of
values generally prevailing in society.
In ordinary parlance “scrutiny”
means “a
careful and thorough examination”.
To “scrutinise”
is “to
look at, or examine something carefully”.
Thus under the ordinary meaning of scrutiny the microscopic eye will
pick out even the most minute infraction. But legal scrutiny under s
58 of the Magistrates Court is something less exacting. It excludes a
pettifogging analysis.
In
S
v
Kawareware
UCHENA J held that for the purposes of both s 58(3) of the
Magistrates Court Act, and s 29(2) of the High Court Act, “real
and substantial justice”
is the considerable judicious exercise of judicial authority by the
trial court, which satisfies, in the main, the essential requirements
of the law and procedure. The
failure to comply with minor requirements, minor mistakes and
immaterial irregularities should not result in the scrutinizing or
reviewing judicial officer refusing to certify the proceedings as
being in accordance with “real and substantial justice”.
The learned judge said that the critical consideration is whether the
proceedings broadly
satisfy the requirements of justice (my emphasis).
At
p 289C – E of the judgment, the learned judge laid down some
guidelines on the main features to look for when scrutinising or
reviewing proceedings. These are:
-
the
correctness of the charge preferred;
-
the
agreed facts or the State and defence outlines;
-
compliance
with statutory requirements in taking a plea of guilty or in
conducting a trial where the accused pleads not guilty;
-
the
acceptance or proof of the facts on which the charge is based;
-
the
assessment of evidence, i.e. matching the law and the accepted or
proved facts;
-
the
trial court's reasons for judgment;
-
the
correctness or otherwise of the conviction; and
-
the
justifiability of the charge or sentence.
I
now turn to the particular queries raised by the regional magistrate
on scrutiny. In my view, the errors were either non-existent or so
minor as not to warrant the withholding of his certificate.
-
The
reasons for sentence in count 2 (negligent driving) do not allude to
the degree of negligence
The
trial magistrate, with all due respect, was correct in pointing out
that the scrutinising magistrate was confusing the necessity of
specifying the gradations of negligence as directed by CHINHENGO J in
S
v
Mapeka & Anor, supra,
in cases of culpable homicide arising out of negligent driving. There
is no need for such categorisation where the charge is directly one
of negligence under s 52(2) of the Road Traffic Act. The provision
simply makes it an offence to drive a vehicle on a road negligently.
The other gradations or categories of negligent driving, such as
driving without due care and attention, or reckless driving, are
provided for elsewhere in the Act. In
casu,
the particulars of negligence were spelt out. They were:
-
failing
to keep a proper lookout;
-
turning
across the path of oncoming traffic;
-
failing
to stop or act reasonably when a collision was imminent.
-
There
is no indication that the State had closed its case when the defence
case opened
-
At
the end of the defence case there appears the endorsement “close
of State case”
I
am satisfied by the explanation proffered by the trial magistrate
that he simply made a mistake by failing to note, before the opening
of the defence case, that the State had closed its case, and for
recording “close of State case” at the end of the defence case.
Such an explanation is consistent with probability given that in
reality the State had indeed closed its case when the defence case
had opened. The accused had indicated that he would be calling no
witnesses. So he would have closed his case after declining to
re-examine himself following his cross-examination of himself by the
State. The trial magistrate's errors are insignificant. They are no
more than what GILLESPIE J referred to as mere “technical
imperfections”:
see S
v
Gore.
Such mistakes are easily explained by the overwhelming pressure that
judicial officers always operate under.
-
Accused
was asked only once at the start of the defence case whether he
wished to call any witnesses
Admittedly,
courts do try and lean more in favour of unrepresented persons. But
this is simply to ensure fair play in order to achieve justice. In
this case, the trial court did ask the accused whether he intended to
call any witnesses. That in his own discretion the scrutinising
magistrate, if he had conducted the trial, could have asked the
accused again after his cross-examination by the prosecutor, would
not be a reason to withhold the certificate. The discretion under
scrutiny is not that of the scrutinising magistrate, but that of the
trial magistrate. There was no misdirection by the trial magistrate.
Just like an appeal court, a scrutinizing magistrate or reviewing
judge, should not lightly interfere with trial court's sentencing
discretion unless there was manifest misdirection which induces a
sense of shock: see S
v
de Jager & Anor;
S
v
Mugwenhe
& Anor;
S
v
Mundova
and S
v
Kawarware, supra.
-
On
count 1 the court sentenced accused to a fine in excess of level 3
[yet] a s 271(2)(a) plea procedure had been adopted
Section
271(2)(a) of the CP & E Act reads:
“271 Procedure
on plea of guilty
(1) ……………………………………………………………..
(2) Where
a person arraigned before a magistrate court on any charge pleads
guilty to the offence charged ……. and the prosecutor accepts that
plea-
(a)
the court may, if it is of the opinion that the offence does not
merit punishment without the option of a fine or a fine exceeding
level three, convict the accused of the offence to which he has
pleaded guilty and impose any competent sentence other than-
(i) imprisonment
without the option of a fine; or
(ii) a
fine exceeding level three;
or
deal with the accused otherwise in accordance with the law;”
Level
three on the scale of fines in the First Schedule to the Criminal
Code is $20.
I
have previously dealt with a review matter in which an accused
person's plea of guilty was accepted in terms of section 271(1)(a)
of the CP & E Act, but with the court going on to impose a fine
of $50, or in default, twenty days imprisonment. In that case, S
v Mazhindu,
CRB No.8340/13, with the agreement of TAGU J, I agreed with the
scrutinising magistrate's observation and altered the fine imposed
by the trail magistrate. But I allowed the proceedings to stand. Here
is how I resolved the matter through a review minute dated 31 October
2014:
“6 The
State having accepted the accused's plea of guilt, and the court
having decided to take it down in terms of s 271(2)(a) of the CP &
E Act, the fine should not have exceeded US$20.
-
However,
in spite of my findings above, I have considered it unnecessary to
upset the proceedings of the trial court. On the whole there was no
danger to the interests of justice. But the accused is entitled to a
refund of the fine paid in excess of the level permitted by law.
-
In
the circumstances the fine of US$50-00 imposed by the trial court is
hereby set aside and substituted with a fine of US$20. The accused
shall be refunded US$30-00. The rest of the sentence remains.”
This
matter is on all fours with the previous one referred to above. In
the circumstances I hereby issue exactly the same directive as
before.
28
January 2015
TAGU
J agrees ………………………………………
1. 1988 (1) ZLR 299 (H)
2. At p 302C – 303C
3. Per GREENLAND J in S v Chidodo
1988 (1) ZLR 299 (H), @ p 302C – 303C
4. Oxford Advanced Learner's Dictionary
5. 2011 (2) ZLR 281 (H)
6. 1999 (1) ZLR 177 (H)
7. 1965 (2) SA 616 (A)
8. 1991 (2) ZLR 66 (S)
9. 1998 (2) ZLR 392 (H)
