Criminal
Appeal
MAKONESE
J: The
appellant appeared before a Magistrate sitting at Tredgold, Bulawayo
facing a charge of contravening section 113(1)(a) of the Criminal Law
Codification and Reform Act (Chapter 9:23).
He
pleaded guilty to the charge and was convicted and sentenced to pay a
fine of $80, in default of payment 18 days imprisonment. Appellant
was not legally represented at the trial.
He
now appeals both against conviction and sentence.
The
State does not support the conviction and sentence and concedes that
the conviction and sentence cannot stand.
It
is our view that the concession is indeed proper.
Background
The
brief facts surrounding this matter as gleaned from the state outline
are as follows:
In
August 2017 the appellant assigned the complainant to undertake some
work at his business premises. The appellant advised the complainant
to leave his tools inside his offices in a safe under lock and key.
When
the complainant turned up to resume work at the appellant's
premises the following day he discovered that an electrical extension
cord was missing.
The
appellant admitted having taken the extension cable and promised to
return it.
The
appellant apparently failed to replace or return the extension cord.
The complainant reported the matter to the police leading to the
arrest of the appellant. The extension cable was valued at $74.
It
is on these facts, that appellant was arraigned before the court a
quo
facing a theft charge.
In
his Notice of Appeal, the appellant argues that the court a
quo
erred in returning a guilty verdict when the appellant had raised
triable issues in the process of the recording of the plea.
In
this regard, the appellant contends that he alerted the trial
Magistrate that he had permission to take the complainant's
property.
This
issue was never explored by the trial court.
The
appellant further argues that the court a
quo
misdirected itself by returning a verdict of guilty without
satisfying itself on the genuineness of the plea of guilty that was
being tendered by an unrepresented accused.
The
learned Magistrate, it has been argued, did not comply with the
peremptory provisions of section 272 of the Criminal Procedure and
Evidence Act (Chapter 9:07).
It
is necessary to indicate that the provisions of 272 of the Criminal
Procedure and Evidence Act are to be followed in all cases to ensure
that before a guilty plea is entered the court is satisfied that all
the essential elements of the charge have been put to the accused and
that he understands them.
This
provision must not be taken lightly or casually by trial magistrates
as this is the whole purpose of the plea recording procedure.
For
the avoidance of doubt, the court shall restate the provisions of
section 272 which are in the following terms:
“If
the court at any stage of the proceedings in terms of section two
hundred and seventy-one and before sentence is passed:
(a)
Is in doubt whether the accused is in law guilty of the offence to
which he has pleaded guilty; or
(b)
Is not satisfied that the accused has admitted or correctly admitted
the essential elements of the offence or all the facts or omissions
on which the charge is based; or
(c)
Is not satisfied that the accused has no valid defence to the charge;
the
court shall record a plea of not guilty and require the prosecution
to proceed with the trial.”
In
the present case, the appellant had this exchange with the trial
Magistrate before the guilty plea was entered:
“Q.
Correct that you took one extension code without his permission?
A.
Yes
Q.
What was your intention in taking it?
A.
To use it, my employee needed it”
The
court put the further question to the appellant:
“Q
Any right to take it without his permission?
A.
Yes.”
The
responses by the appellant should have triggered the court into
enquiring further into the genuineness of the appellant's plea.
The
court ought to have observed that there were material contradictions
in the answers which were being given by the appellant. The court
needed to satisfy itself that the admission of guilt was unequivocal,
genuine and unqualified.
The
court clearly, in our view, erred in taking a cursory approach to the
plea recording procedure, resulting in the conviction of the accused.
It
must be noted that even during mitigation, the appellant raised
something which should have alerted the Magistrate to the fact that
the plea was not genuine. The appellant stated the following:
“We
ended up using the cable since accused left his tool box behind. I
had requested to replace the cable. But the complainant kept changing
the price.”
The
explanation given in mitigation of the appellant left a lot of
unanswered questions as to what had really transpired.
It
is our view, that the trial Magistrate ought to have assisted the
unrepresented accused as he appeared to have been raising a defence
to the charge.
It
is trite law that when an accused person pleads guilty to an offence
and then goes on to deny an essential element of the offence charged,
the court must proceed to alter the plea to one of not guilty. The
matter must proceed to a full trial in order to canvass the issue of
criminal intent. See State
v Chirodzero
HH14-88.
In
the case of State
v Chirodzero
(supra) REYNOLDS J
emphasized
that the court must constantly bear in mind the dangers inherent in
convicting persons upon guilty pleas. Magistrates must do everything
in their power to ensure that injustice does not occur. A trial
Magistrate must ensure that the guilt of the accused is established
both in fact and law. The accused must admit all the essential
elements of the charge before a plea of guilty is entered.
In
State
v Samson Phiri
HB133-17, this court remarked that:
“It
was therefore unnecessary and totally uncalled for and indeed
inappropriate for the learned trial Magistrate to extract an
admission of guilt from the unrepresented accused. Once the accused
has given answers that show that the plea of guilt is not unequivocal
then the matter is supposed to end there. The matter must proceed to
trial.”
These
remarks apply with equal force in this matter.
The
appellant indicated that he believed that he was authorized to take
the electrical cable or that he had the right to take it. In essence,
the accused's responses to questions put to him by the court
clearly revealed that he was proffering some defence. His mental
intention to steal the property and to deprive the owner permanently
was not established.
In
any event, the state has made a further concession that the trial
magistrate did not comply with the provisions of section 163A of the
Criminal Procedure and Evidence Act.
A
perusal of the record of proceedings indicates that the magistrate
recorded the following; “Right
to legal representation explained and understood in terms of section
163 of the Criminal Procedure and Evidence Act.”
It
is important to note that the requirements of section 163A are made
peremptory by the use of the term “shall”
in
the relevant section.
The
record reflects that no response was recorded from the appellant.
Failure
to explain an accused person's right to legal representation
amounts to a misdirection. It is an irregularity in the conduct of
the proceedings. For this reason alone, the conviction could not be
allowed to stand.
In
the result, we conclude that the trial Magistrate erred in convicting
the appellant in the absence of an unequivocal plea of guilty, and by
reason of the failure to comply with the peremptory provisions of
section 163A of the Criminal Procedure and Evidence Act.
We
accordingly order as follows:
1.
The appeal succeeds.
2.
The conviction and sentence of the court a
quo
is set aside.
MABHIKWA
J………………………………….
I agree
Samp
Mlaudzi and Partners,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
