Criminal Appeal
UCHENA J: The appellant
was convicted on a charge of contravening s3(1)(a) of the Sexual
Offences Act [Cap
9:21].
He appealed to this court against
both conviction and sentence.
After hearing submissions from
counsel for the parties we upheld his appeal and set aside his
conviction and sentence. We indicated that our reasons for judgment
would follow. These are they:
The appellant fell in love with
the complainant who was then aged thirteen. He early in, the morning
of 17 April 2006 invited her to his house where it is alleged he
raped her. He was charged with rape, but, was convicted of
contravening s3(1)(a) of the Sexual Offences Act [Cap
9:21].
He was convicted by a regional magistrate sitting at Harare Regional
Magistrate's Court, who sentenced him to 36 months imprisonment of
which 12 months were suspended on conditions of good behaviour.
The appellant appealed to this
court against conviction and sentence. His appeal against conviction
is based on irregularities and evidential deficit.
On irregularities the appellant
alleged that his trial was fast tracked to his prejudice and the
State failed to produce the complainant's first statement to the
police in which she denied having been raped by the appellant. Mr
Mavhondo
also challenges the medical report on the ground that it was produced
without giving the appellant three days' notice as required by
s278(11) of the Criminal Procedure and Evidence Act [Cap
9:07], and without
seeking his consent for its production without the requisite notice.
On evidential deficit Mr Mavhondo
for the appellant submitted that the trial court erred by relying on
the evidence of the complainant who came to court with visible
injuries, having been assaulted by her uncle for this case. That the
complainant had freely and voluntarily made an initial statement to
the police denying having been raped by the appellant. He submitted
that the complaint was examined by a doctor four days later and the
report does not state that the appellant is the one who had sexual
intercourse with her. He also argued that there was no basis for the
magistrate preferring the complainant's and her uncle's evidence
to that of the appellant and his witness.
Irregularities
Mr Mavhondo
for the appellant raised two main grounds on which he alleged that
there were irregularities in the appellant's trial before the court
a quo.
He submitted that the case was unduly fast tracked and the Doctor's
report on the complainant was improperly produced.
Mr Mavhondo
for the appellant submitted that the appellant was brought to court
by the police and his case was heard on the same day.
This is not disputed by the
respondent. It is in fact confirmed by the record of proceedings.
The issue is simply whether or
not it is permissible to fast track trials in the magistrate's
court in the manner the appellant's trial was conducted.
The fast tracking of cases
started in the early 1990's as a means of reducing the courts'
backlog. It is not specifically provided for by that name in the
Criminal Procedure and Evidence Act [Cap
9:07], which I will
refer to in this judgment as the CP&E Act. This however does not
mean it is an unlawful procedure.
It is in fact a useful procedure
which if well managed helps to contain and/or reduce the courts'
backlogs of criminal cases, and ensures the delivery of timeous
justice. All that has to be done is to ensure that it is used in
compliance with the provisions of the CP&E Act, and other laws
which provide for a fair trial.
Section 163 of the CP&E Act
provides for the timing of an accused person's trial in the
magistrate's court as follows:
“Any
person to be prosecuted on a criminal charge in a magistrate's
court shall be brought for trial
at the next
possible court day.”
This in my view means when an
accused person is arrested and is to be prosecuted in the
magistrate's court he shall be brought to trial on the next
possible court date, which means on the day when the court will be
sitting next after the decision to prosecute him in the magistrate's
court will have been made. This however does not mean the trial has
to start on that day without fail. It is desirable that it should,
but regard
should be had to
the provisions of s165 of the CP&E Act which provides for
postponements where necessarily.
The provisions of s163 are
therefore in general consistent with the fast tracking of trials in
the magistrate's court. The wording is such as can justify the
trial of an accused person once he is brought before
a magistrate.
John Reid Rowland in his book
“Criminal Procedure in Zimbabwe” commending on section 163 of the
CP&E Act said:
“This does not necessary mean
that his trial will take place on that date, it may very well be
postponed. Undue haste in bringing a case to court may be prejudicial
to the accused and thus constitute an irregularity”.
Undue haste can be due to the
refusal of an accused person's request for a postponement to enable
him to prepare for the trial or to engage the services of a legal
practitioner. It can also be due to the trial proceeding without
complying with the requirements of a fair trial.
In the absence of a valid request
for the postponement of the pending trial, and if the trial complies
with the requirements of a fair trial a magistrate's court can
proceed with an accused person's trial on the “next possible
court day”, as provided by s163.
In the present case Mr Mavhondo
for the appellant argued that the trial court should have asked the
appellant who was facing a serious charge of rape whether or not he
wanted to be legally represented, and if he had said he did the case
should have been postponed for that purpose. He argued that the fact
that the appellant needed the services of a legal practitioner is
confirmed by his engaging one on the following day, but when his
trial had already been completed.
He submitted that the appellant's
friend discovered that the appellant was being tried without legal
representation, and arranged for it.
He also submitted that the
appellant was not given three days' notice for the production of
the Doctor's report, and that even though he consented to the
production of the report he did so without having been advised that
he was entitled to three days' notice of its production.
Every accused person is ideally
entitled to legal representation at his trial.
This becomes more compelling if
he is facing a serious charge for which if convicted he can be
sentenced to a long term of imprisonment.
Generally, such legal
representation would be, at the accused's own expense. It is only
in exceptional cases when a magistrate may be required to order legal
representation through the Legal Aid system.
Judicial officers should in
appropriate cases ask the accused person if he needs the services of
a legal practitioner at his own expense. Justice can however still be
done if the trial magistrate ensures that justice is done by making
sure the trial complies with the statutory requirements for a fair
trial.
This issue was dealt with by the
Supreme Court in the case of S
v Dube & Anor
1988 (2) ZLR 385 (SC) at pp392H to 393F where DUMBUTSHENA CJ without
laying a hard and fast rule, said:
“In our view judicial officers
trying such cases should ask themselves three questions:
1. Where the accused has pleaded
guilty, would it be appropriate nonetheless to enter a plea of not
guilty in terms of the provisions of s255A of the Criminal Procedure
and Evidence Act?
2. Where the accused is
unrepresented, would it be fair and appropriate to advise him of the
complexities of the matter and enquire whether he has considered
obtaining legal representation?
3. If satisfied that the accused
should have legal representation but cannot afford it, should the
court certify that he should have legal representation in terms of
the provisions of s3 of the Legal Assistance and Representation Act
[Cap 66],
as amended by s2 of Act 21 of 1974.
We do not mean to suggest, far
less to lay it down as a rule of practice, that magistrates should
recommend legal aid in every case where a long sentence is possible.
In most cases a plea of guilty is quite clear and unequivocal, and
the procedures laid down in s255 will ensure a fair hearing. Equally,
there will be many cases where a fair hearing can be ensured by using
the procedure set out in s255A and changing the plea to "not
guilty" so that questions of law and admissions of fact can be
explored and clarified (see S
v Nyamweda
1983 (1) ZLR 131 (SC); S
v Malili & Anor
1988 (4) SA 620 (T)).
Finally, there will be some cases
where it will be enough for the magistrate to explain the
complexities and enquire whether the accused does not want to engage
legal representation at his own expense. This should be done at the
earliest possible stage, ideally when the accused is first remanded.
It will thus only be in a
minority of cases that the magistrate will conclude that there cannot
be a fair trial without representation. In such cases his duty is to
act in terms of Chapter
66 and recommend legal
aid. Even then, of course, an accused person can waive his right to
representation, provided, he does so on a properly informed basis.”
I am therefore satisfied that the
magistrate's failure to ask the appellant if he needed the services
of a legal practitioner is on its own, not a sound ground for
upsetting the appellant's conviction.
The commencement of the trial
without affording the appellant a postponement for him to engage the
services of a legal practitioner is also not an irregularity as the
appellant had not asked for a postponement. He had infact come to
court with his wittiness who testified. He was apparently ready for
the trial. If he had applied for a postponement, the magistrate would
have erred if he had ignored the appellant's request and ordered
the trial to proceed in spite of such a request as the request would
have been made on the appellant's first appearance in court. A
refusal could not have been justifiable in those circumstances.
The issue of substance, which was
dwelt on towards the end of the appeal hearing, is the magistrate's
failure to observe the requirements of s278(11) of the CP&E Act.
Mr Mavhondo
for the appellant submitted that the appellant's trial was
conducted with such haste that his right to three days notice before
the production of the Doctor's report on the complainant's
examination, was not complied with.
Mrs Fero
for the respondent conceded, that the appellant was not given three
days' notice of the State's intention to produce the Doctor's
report, and that his consent to its production without such notice
was not sought. It was also conceded that the law on the production
of such documents was not explained to the appellant.
The concessions were properly
made as the magistrate's omissions are apparent from the record of
proceedings.
Section 278(11) of the CP&E
Act provides as follows:
“(11) An affidavit referred to
in this section shall not be admissible unless the prosecutor or the
accused, as the case may be, has received three days' notice of its
intended production or consents to its production.”
In terms of s278(11) of the CP&E
Act two things must happen for the affidavit to be admissible in
evidence.
The three days' notice should
have been given or the appellant should have consented to its
production without his having been given such notice.
The consent of an unrepresented
accused person can only be valid if his right to such notice is
explained to him before he is asked whether or not he consents to its
production without the requisite three days' notice.
It is not enough to merely ask if
he consents to the production of the Doctor's report as there is
need for him to consent to its production in general and to consent
to its production without the statutorily required three days notice
of its production.
If the affidavit is produced
without the requisite notice or consent, it will not have been
properly produced and cannot be used as evidence against the accused.
In this case the Doctor's
affidavit on the examination of the complainant was not properly
produced. That evidence was not properly before the trial court.
Its use in convicting the
appellant should therefore affect the regularity of the proceedings
and the propriety of the conviction.
Its production without the
requisite three days' notice or his informed consent is an example
of the court proceeding with a trial with undue haste to the
prejudice of the appellant.
This is an example of how fast
track trials should not be conducted.
Mrs Fero
for the respondent submitted that in the circumstances the
appellant's conviction and sentence should be set aside and the
case be referred back to the trial court for trial de
novo. She submitted
that this court could use its review powers in terms of s35 of the
High Court Act to do so.
Mr Mavhondo
for the appellant agreed with her.
Section 35 of the High Court Act
[Cap 7:06]
provides as follows:
“When an appeal in a criminal
case, other than an appeal against sentence only, has been noted to
the High Court, the Attorney-General may, at any time before the
hearing of the appeal, give notice to the registrar of the High Court
that he does not for the reasons stated by him support the
conviction, whereupon a judge of the High Court in chambers may allow
the appeal and quash the conviction without hearing argument from the
parties or their legal representatives and without their appearing
before him.”
The procedure provided by s35 is
not applicable in this case as it refers to concessions made by the
Attorney- General “before the hearing of the appeal”, and such
concessions are channeled through the registrar for consideration by
a judge in chambers.
When we brought this to the
attention of Mrs Fero
for the respondent and
Mr Mavhondo
for the appellant they both agreed that s35 was inapplicable and
urged us to use our common law review powers.
While it is correct that this
court has inherent jurisdiction and can use it to refer this case
back to the trial court for trial de
novo, s41(d) and (h)
as read with s29(2)(b)(v) of the High Court Act gives this court
supplementary powers to deal with a situation such as has arisen in
this case.
Section 41(d) and (h) provides as
follows:
“For
the purposes of this Part, the High Court may, if it thinks it
necessary or expedient in the interests of justice —
(a)…;
(b)…;
(c)…;
(d)
having set aside the conviction, remit the case to the court or
tribunal of first instance for further hearing, with such
instructions as regards the taking of further evidence or otherwise
as appears to it necessary;
(e)…;
(f)…;
(g)…;
(h)
exercise any of the powers of review conferred upon the High Court by
section twenty-nine:
Provided
that, whenever the High Court receives further evidence or gives
instructions for the taking of further evidence, it shall make such
order as will secure an opportunity to the parties to the proceedings
to examine every witness whose evidence is taken.”
Section
29(2)(b)(v) provides as follows:
“(2) If
on a review of any criminal proceedings of an inferior court or
tribunal, the High Court considers that the proceedings —
(a)…;
(b)
are not in accordance with real and substantial justice, it may,
subject to this section —
(i) alter
or quash the conviction; or
(ii) reduce
or set aside the sentence or any order of the inferior court or
tribunal or substitute a different sentence from that imposed by the
inferior court or tribunal:
Provided
that —
(i)…;
(ii)…;
(a)…;
(b)…;
or
(iii) …;
or
(iv) …;
or
(v) remit
the case to the inferior court or tribunal with such instructions
relative to the further proceedings to be had in the case as the High
Court thinks fit; or”
This court
can therefore act either in terms of s41(d) or (h) if it finds it
appropriate to refer the case back to the trial court.
This
however depends on our findings on the appellant's grounds of
appeal on evidential deficit.
It is in my
view not proper to refer a case back to the trial court for trial de
novo
when the evidence led before the first trial was such as would not
sustain a conviction. This would be tantamount to sending the
appellant for another trial in circumstances where he should have
been acquitted at the first trial.
Evidential
Deficit
Mr
Mavhondo's
Heads of Arguments raises issues on the reliability of the
complainant's uncle's evidence on his having seen the appellant
and the complainant in the appellant's bedroom through a keyhole.
He in
submissions argued that the trial court erred when it preferred his
evidence to that of the appellant and his witness.
At p11 of
the record James Kwecha the complainant's uncle said he advised the
police officer that he had seen the appellant and the complainant in
the appellant's bedroom. They then ordered Chamunorwa Jenyu the
appellant's witness who he said had shown them other rooms to open
the door. He told them he did not have keys to that room. James then
went to look for a screw driver he wanted to use to open the door. He
said that is when the complainant sneaked out of the appellant's
bedroom.
Chamunorwa
disputed James' evidence when he testified for the appellant.
The
complainant's uncle's evidence is not reliable on this aspect. He
said he was with a police officer to whom he had reported that his
brother's daughter was being abused in the appellant's bedroom.
He had told the officer that he had seen the complainant and the
appellant through a keyhole. He then went to look for a screw driver,
and the complainant sneaked out during that period.
This sounds
untruthful as according to his evidence he went to look for the screw
driver implying that the police officer remained at the door.
If that was
the case how could the complainant have sneaked out in the presence
of the police officer.
It is also
inconceivable that a police officer would be so inefficient as to
allow the complainant to sneak out of the appellant's bedroom when
he had been called to witness that fact and arrest the appellant.
The State
did not call the police officer leaving the appellant's word in
contestation with James' word.
The record
reveals that James could have had a motive to exaggerate against the
appellant.
He in his
own evidence said he also wanted to take a knobkerrie so that he
could kill the appellant. He in fact admits attacking the appellant
and wanting to assault the complainant and being restrained by the
police. His aggression towards the appellant and the complainant
strengthens the appellant's evidence that he was refusing to open
his door because he was afraid of him and not because the complainant
was in his bedroom. The State's failure to call the police officer
who came with James to the appellant's house entitles the appellant
to the benefit of the doubt, especially in view of the complainant
having initially made a statement in which she denied having had
sexual intercourse with the appellant.
The
appellant's evidence that he had spoken to the complainant at the
gate and had not taken her into his bedroom becomes probable.
It is for
these reasons that we upheld the appellant's appeal and set aside
his conviction and sentence.
MWAYERA J: agrees ……………………….
Sawyer & Mkushi,
appellant's legal practitioners
Attorney-General's Criminal Division,
respondent's legal practitioners
