Criminal Review
MAKONESE J: The purpose of
canvassing essential elements of an offence to an accused person,
more particularly one who is unrepresented at trial is for the court
to satisfy itself that the accused person is tendering a genuine plea
of guilt from an informed position of his liability at law.
The accused appeared before a
senior magistrate at Filabusi on a charge of having extra marital
intercourse with a minor in contravention of section 70(1) of the
Criminal Law (Codification and Reform) Act (Chapter 9:23).
Upon conviction, the magistrate
ordered that the accused be tested for HIV in terms of section 320A
of the Criminal Procedure and Evidence Act (Chapter 9:07).
Having found that the accused
tested HIV positive and was therefore liable to mandatory sentence of
at least 10 years and that he had no jurisdiction to impose an
appropriate sentence the magistrate stopped the trial in terms of
section 54(2) of the Magistrates Act (Chapter 7:10) and referred the
matter to the Office of the Prosecutor General.
Upon a perusal of the record of
the proceedings, the Chief Public Prosecutor is of the view that the
matter cannot be transferred to the High Court for sentence because
the plea of guilt was not an unequivocal admission of guilt as
provided under section 271(2)(b) of the Criminal Procedure and
Evidence Act.
The brief facts as gleaned from
the outline of the state case are that the complainant is a female
juvenile aged 15 years. She was attending school at Sidzibe Secondary
School in Filabusi and she was doing form three.
The accused person is a male
adult aged 29 years employed as a security guard at Cover
Supermarket, Filabusi.
During the month of January 2017
the accused and the complainant fell in love. The two had sexual
intercourse during that month up to February 2017 when the
complainant discovered that she had fallen pregnant.
The complainant confessed to her
mother that she had been impregnated by the accused.
A report was made to the police
leading to the arrest of the accused. The accused appeared in court
on the 11th
of April 2017.
When the charge was put to him
accused pleaded guilty.
He was asked if he agreed with
the facts and he said he did. He added that he was in love with the
complainant.
In canvassing the essential
elements of the offence, the record reveals the following exchange
between the court and the accused:
“Essential
elements
Q - Do you agree that between
January 2017 and February 2017 you had sexual intercourse with
Siphephile Dube?
A - Yes. She would come to me
after knocking off at school.
Q - You knew she was below 16
years?
A – No.
Q - And what age did you think
she was?
A - Between 16 and 17 years.
Q - Why did you think so?
A - I asked her and she told me
she is 16 years of age.
Q - Was that before or after
sexual intercourse?
A - We had already started having
sexual intercourse.
Q - At the time you started
having sexual intercourse with her, how old do you think she was?
A - I thought she was 17 years.
Q - And what made you think so?
A - I just thought it to be so.
Q - Any right to act as you did?
A – No.
Q - Any defence to the charge?
A – No.
Q - Is your plea genuine?
A – Yes.
Verdict: Guilty as charged.”
The accused was convicted inspite
of his indication that he thought the complainant was aged between 16
and 17 years.
The accused stated quite clearly
that the basis of his belief that the complainant was above the age
of 16 years was that the complainant had told him that she was 16
years of age.
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 an 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.
Trial magistrates are reminded to
ensure that before convicting an accused person on a plea of guilty
the requirements set out in section 271(2)(b) of the Criminal
Procedure and Evidence Act, must be strictly complied with. The
section is designed to avoid the conviction of an unrepresented
accused person through inadvertence or ignorance. The section
provides that:
“s271 Procedure
on plea of guilty
(1)….
(2) When a person arraigned
before a Magistrates Court on any charge pleads guilty to the offence
of which he might be found guilty on that charge and the prosecutor
accepts that plea –
(a)…
(b) The court shall, if it is of
the opinion that the offence merits any punishment referred in
paragraph (i) of para (a) or if requested thereto by the prosecutor –
(i) Explain the charge and the
essential elements of the offence to the accused and to that end
require the prosecutor to state, in so far as he acts or omissions on
which the charge is based are not apparent from the charge, on what
acts or omissions the charge is based; and
(ii) Enquire from the accused
whether he understands the charge and the essential elements of the
offence and whether his plea of guilty is an admission of the
elements of the offence and of the acts or omissions stated in the
charge by the prosecutor;
And may, if satisfied that the
accused understands the charge and the essential elements of the
offence and the acts or omissions the charge is based as stated in
the charge or by the prosecutor, convict the accused of the offence
to which he as pleaded in his plea of guilty and impose any competent
sentence or deal with accused otherwise in accordance with the law.”
The trial magistrate did not
observe the laid down procedures laid down in the above section. The
magistrate was not entitled to cross-examine the accused on why he
thought the complainant was above age of 16 years. Once the accused
stated that he believed that complainant was above the age of 16
years, the trial magistrate ought to have entered a plea of not
guilty.
He did not do so, but instead
proceeded to hear evidence in mitigation.
After recording the mitigating
factors, the trial magistrate ordered the accused to undergo HIV
tests in terms of section 320A of the Criminal Procedure and Evidence
Act. The accused tested HIV positive and the magistrate realised that
he did not have jurisdiction to impose an appropriate sentence.
The Chief Public Prosecutor has
correctly observed that the proceedings before the trial magistrate
are fatally defective.
The trial court misdirected
itself by failing to observe that the plea being tendered by the
accused constituted a valid defence to the charge. The trial
magistrate ought to have strictly observed the provisions of section
271(2)(b). See the case of State
v Obert Sakatare
HH-105-13.
The facts of the case of S
v Sakatare are on
all fours with the present case.
Once the accused had stated that
he was not aware that the victim was between the age of 16 years, he
had proffered a defence provided in section 70(3) of the Criminal Law
(Codification and Reform) Act. See also the case of William
Ndlovu v The State
SC 223/91.
Section 70(3) of the Criminal Law
(Codification and Reform) Act provides that:
“It shall be a defence to a
charge under sub-section (1) for the accused person to satisfy the
court that he or she had reasonable cause to believe that the young
person concerned was of or above the age of 16 years at the time of
the alleged offence.”
For the foregoing reasons, there
can be no doubt that the proceedings were not conducted in accordance
with real and substantial justice.
It is a misdirection and fatal
miscarriage of justice for the trial magistrate to convict an accused
person on a plea of guilty in circumstances where an accused has
raised a valid defence to the charge.
That being the case, the
conviction cannot be allowed to stand. It is accordingly ordered as
follows:
1. The proceedings in the court a
quo are hereby
quashed and the conviction set aside.
2. The matter is referred to a
different magistrate for a trial de
novo.
MOYO J:…………………………… I agree
