Criminal Review
NDOU J: The accused was
convicted and sentenced for an offence cited as “Proceed against
red robot.” There is no charge sheet in the record of proceedings.
I queried this and the learned trial magistrate respondent:
“the trial magistrate would
like to apologise for not sending the charge sheet and the state
outline. This because in Traffic Court, forms 265 are used as charge
sheet and they will be having all the information that is contained
in the normal state outline. They are regarded as complete docket.”
This is obviously incorrect.
The Form 265 in this case does
not contain much. The relevant portion of the ZRP Form 265 contains
the following scant information:
“Offence/s:
… c/s …
Proceed against red robot.
Place of occurance:
Luveve Rd, Byo
Date:
21/10/08 Time:
1725 Hrs”
The rest of the information is not relevant for this judgment i.e.
the offender's personal particulars, arresting detail's police
force details and the vehicle particulars.
(i) First, this a statutory
offence yet the statutory provision in question has not been cited.
In fact the ZRP Form 265 gives the impression that the offence is a
common law one.
(ii) Second, the ZRP Form 265
does not allege the basis of liability. In fact, all the necessary
averments are not there.
(iii) Third, the place is not
sufficiently specified. Luveve Road, it is common cause, has several
robots. So which robot did the offender proceed against?
The charge sheet is defective.
It is lacking in particulars –
R
v Gola
1966 RLR 327.
This charge is so defective that
it is insufficient to compose a valid charge – R
v Mlotshwa
1968 (2) RLR 172 (G).
The charge must have reasonably sufficient particulars to inform the
accused of the charge he is facing.
In R
v Gola
case, supra,
it was held that where a charge merely paraphrased the offence and
did not state the particulars of the conduct penalized by statutory
provision was defective, and if no evidence was given remedying the
defect, the conviction cannot stand.
It is trite that the court has a
duty to ensure that the accused fully understands the nature of the
charge he is facing – S
v Sikarama
1984 (1) ZLR 170 (H). All necessary particulars must be averred in
the charge – S
v Janyure
1988 (2) ZLR 470 (S).
This is not the case here.
The conviction cannot stand.
Accordingly, the conviction is
quashed and the sentence set aside. A trial de
novo is ordered before
a different magistrate.
CHEDA J: I agree
