The
accused person appeared before the Regional Magistrate in Gweru on 25
April 2016 charged with attempted murder in contravention of section
47 of the Criminal Law Code [Chapter 9:23] the allegations being that
he had beaten up his 22 year old drunken and abusive uncle with a hoe
handle on the night of 18 July 2015.
He
pleaded not guilty to the charge and his plea was an unequivocal
denial of the offence. He said:
“I
never intended to kill the complainant. After all, complainant is my
nephew. I deny trying to kill him. No way. No, I didn't.”
One
is left wondering what the relationship is between them because
according to the State Outline the complainant is the uncle of the
accused person. Whatever the case, what struck me when I reviewed the
proceedings is what transpired after the accused person had pleaded
not guilty and given his position - which was an unequivocal denial
of the charge. Thereafter, his Defence Outline was not recorded.
Instead
of getting on with the trial by opening the State case, the public
prosecutor addressed the court and the procedure that was then
adopted is unprecedented. I reproduce hereunder the record of
proceedings:
“Summary
of State case accepted (marked) Annexure A
I
must submit that the prosecution does not have evidence to prove
intention to kill on the accused's part. Looks like accused and
complainant had some misunderstanding between them, may be caused by
the complainant's drunkenness on that night. The problem is that
accused over-reacted and used a hoe handle to negligently strike the
complainant on the head. Accused did not have to strike the
complainant using a hoe handle, as he did in the circumstances
accused negligently inflicted a serious injury on the complainant in
contravention of section 90 of the Criminal Law Code.
So
accused can be cleared of the charge of contravening section 47 as
read with section 189 of the Code (i.e. attempting to kill) but
should be found guilty of negligently inflicting the injury on the
complainant in contravention of section 90 of the Criminal Law Code
here.
By
Court to Accused: So,
you were negligent when you struck the complainant by a hoe handle on
the head as you did on 18 July 2015 causing the serious injury.
Accused:
I
admit that I should not have used a hoe handle to strike the
complainant on the head as I did. I was negligent to behave the way I
did. May be I should have simply gotten out of the house and went
away instead of hitting complainant as I did. The complainant was
drunk also. I am sorry.
By
Court:
I find you not guilty of attempted murder but guilty of contravening
section 90 of the Code.”
It
should be understood that in this country the Prosecutor General,
and, by extension, the public prosecutors he assigns to prosecute
offenders on his behalf, is dominus
litis
in criminal prosecutions. It is therefore the prosecutor's right to
determine which charge to prefer against an accused person and to
ensure that the accused person is charged with the correct offence.
See S
v Sabawu and Another
1999 (2) ZLR 314 (H).
While
section 202(1) of the Criminal Procedure and Evidence Act [Chapter
9:07] permits a court, in certain circumstances, to amend a charge,
it only allows corrections to be made by the court to an existing
charge. It certainly is not an omnibus provision permitting the court
to substitute a totally different charge. See S
v Shand
1994 (2) ZLR 99 (S).
In
the present case, the prosecutor advised the court that he had no
evidence to sustain the charge that he had preferred against the
accused person who had gone on to plead to the charge and pleaded not
guilty. One wonders, therefore, why the prosecutor preferred the
charge in the first place when he had no evidence. If he had any
evidence against the accused, the prosecutor should have decided on
the correct charge that could be sustained by that evidence and not
to hop, step and jump over the rights of the accused person, as
happened in this matter.
Ordinarily,
the moment the prosecutor conceded that he had no evidence to sustain
the charge to which the accused person had pleaded, the accused
person was entitled to his acquittal and not to an adulteration of
criminal procedure.
If
the evidence could sustain an alternative charge, or a permissible
verdict, then, by all means, the State should have proceeded to
prefer an alternative charge and led such evidence in quest of a
conviction on the alternative offence.
The
State did not lead such evidence, or any evidence at all, even after
the accused person had pleaded not guilty to the charge that was
preferred against him. Instead, the trial magistrate took over the
show and started interrogating the accused person who was not even
under oath. As it is now there is no evidence whatsoever in the
record to prove any averment in the charge but the accused person has
been convicted, not by virtue of any guilty plea of his, he having
pleaded not guilty, but of contravening section 90 of the Criminal
Law Code for which he was not charged and did not plead. It is a
section which creates an offence which is not even a permissible
verdict in terms of the Code.
It
is salutary in our criminal procedure that an accused person must
plead to the charge. Absolutely no-one, not even his legal
representative, can enter a plea on behalf of an accused person. The
plea is his own preserve. As long as the accused person has pleaded
not guilty to the charge the case has to go for trial unless the
State elects to withdraw the charge that has been pleaded to after
plea. Where that happens the accused person is entitled to his
acquittal.
In
my view, the procedure adopted by the trial magistrate was very
wrong. At no point during the proceedings and in answer to the charge
had the accused person stated that he had been negligent or that he
had struck the complainant. The magistrate however went on to put it
to him that he had been negligent when he struck the complainant.
Clearly, that line of questioning, which was of a leading nature, and
coming from the court itself, had the effect of influencing the
accused person to alter his plea from not guilty to that of guilty to
some other offence for which he was not even charged. See S
v Manyami
HB36-90.
This
was an unrepresented accused person to which the court owed a duty of
assistance. There is nothing to suggest that the court was sensitive
to that duty.
The
facts themselves were simple and straight forward. The accused person
had been sleeping in his bedroom on the night of 18 July 2015 when
the complainant arrived at about 2130 hours. The
complainant was drunk and he started harassing the accused person.
The State alleges that a misunderstanding then ensued as a result of
which the accused struck the complainant with a hoe handle all over
the body. He allegedly sustained a deep cut on the head. A medical
report supporting the allegations of assault was produced. When it
was produced the accused person was never consulted. His right to be
given notice of it were not explained to him.
After
inviting the accused person to address the court in mitigation of
sentence, the court then allowed the State to lead evidence from the
complainant on the injuries he sustained. It is then that he told the
court the accused had struck him with a hoe causing injury to the
head. He however said he had fully recovered. Evidence was also led
from a relative of the accused concerning payment of medical bills.
After
all this, the accused was sentenced to 5 years imprisonment of which
3 years imprisonment was suspended for 5 years on condition of future
good behavior. The remaining 2 years was suspended on condition he
restitutes the complainant the sum of $956= in medical expenses on or
before 30 November 2016.
When
the record was placed before me I queried the procedure followed. I
desired to know from the magistrate why, after the accused had
pleaded not guilty to attempted murder, he had returned a verdict of
not guilty of attempted murder but guilty of contravening section 90
of the Criminal Law Code when the charge was not contravening section
90.
The
magistrate's response is contained in a letter dated 13 June 2016
which reads:
“RE:
REVIEW MINUTE: S V JACOB MADYAMOTO: CRB GWR 119/16
Place
this record before Mr Justice Mathonsi with the following comments:
There
appears to be no legal basis to have convicted the accused of c/s 90
of the Criminal Law Code (i.e. negligent assault), who had pleaded
not guilty to attempted murder in the proceedings under
considerations. Certainly the charge should have been amended
accordingly to conform with what appeared to be some agreed facts
resulting in conviction for c/s 90 of the Code. His Lordship did not
miss something at all. The trial magistrate can only implore the
honourable reviewing Judge to employ the powers of review in section
29 of the High Court Act (preferably section 29(3)).
I
stand guided.”
The
last part of the trial magistrate's letter is remarkable not by
reason that it sheds any light to the manner in which the proceedings
were conducted by him but by the fact that he appears to direct how
the matter should be reviewed. He had an opportunity to conduct the
proceedings procedurally and in accordance with real and substantial
justice. Having come short in both fronts now he sees it fit to
render advice to the reviewing judge. Interesting indeed, considering
that section 29(3) of the High Court Act, which he commends to me,
provides:
“No
conviction or sentence shall be quashed or set aside in terms of
subsection (2) by reason of any irregulatory or defect in the record
or proceedings unless the High Court or a judge thereof, as the case
may be, considers that a substantial miscarriage of justice has
actually occurred.”
With
due respect to the learned Regional Magistrate, considerations of
whether a substantial miscarriage of justice has occurred are the
function of the reviewing judge and not the court whose proceedings
are being reviewed. It is not the province of that court to seek to
have the impugned proceedings upheld when the record is in shambles
and a trial was circumvented when the accused person had pleaded
guilty through the inappropriate bidding of the court.
In
my view, prevailing upon an accused person, who has pleaded not
guilty to the charge, to accept a charge which was not put to him,
even without the State leading any evidence to prove the charge, is a
substantial miscarriage of justice. Where the prosecutor comes to
court expecting a guilty plea but the accused surprises him by
pleading not guilty, as happened in this case, he cannot elicit the
assistance of the court to help him persuade the accused person to
see the light. The prosecutor must get on with the business of
presenting the State case. If he has not brought his witnesses, the
right thing to do is to seek a postponement to secure the attendance
of witnesses.
This
is because where the accused pleads not guilty the onus is on the
State to prove every averment in the charge in order to secure a
conviction unless the accused person relieves him of part of the
burden by admitting to certain facts.
While
it is true that in terms of section 272 of the Criminal Procedure and
Evidence Act, any element, act or omission correctly admitted by the
accused up to the stage that a not guilty plea is entered and which
has been recorded in terms of section 271(3) is sufficient proof of
the element, act or omission, I am of the view that such admission
must be lawfully made and not forced out of the accused by the court
inappropriately.
I
would otherwise substitute the verdict of guilty to assault as it is
a permissible verdict to a charge of attempted murder in terms of
section 275 as read with the 4th
Schedule to the Criminal Law Code, but, in my view, that can only be
done where the evidence led by the State in an effort to prove the
charge is insufficient to sustain the charge but the lessor charge
permissible by law.
The
unique situation we have in this matter is that the State did not
lead evidence to prove the charge. The only evidence that was led was
in respect of sentence - long after the accused person had pleaded
not guilty to the charge and had already been convicted.
It
occurs to me that where the State abdicates its responsibility of
proving the averments in the charge, the end result is that envisaged
by section 9 of the Criminal Procedure and Evidence Act which states:
“The
Prosecutor General may, at any time before conviction, stop any
prosecution commenced by him or by any other person charged with the
prosecution of criminal cases but, if the accused has already pleaded
to any charge, he shall be entitled to a verdict of acquittal in
respect of the charge.”
As
I have already said, after putting the charge to the accused person
the prosecutor stood up to say he had no evidence to prove the
charge. Strange though it was, that is what happened and he did not
bother to lead any evidence, leaving the magistrate to take over. The
intervention of the magistrate in a duel where he was supposed to be
the arbiter and not to descend onto the arena was a misdirection and
whatever flowed from it was a nullity.
To
the extent that the prosecutor stopped the prosecution without
leading evidence on the guilt of the accused meant that the accused
was entitled to a verdict of not guilty. The matter should therefore
end there. Whatever followed thereafter was an exercise in futility,
undertaken to the very serious prejudice of the accused person.
In
the result, it is ordered that:
1.
The conviction of the accused person is hereby quashed.
2.
In its place is substituted the verdict that the accused person is
found not guilty and acquitted.
