MUSAKWA
J:
The
applicants are seeking the dismissal of the charge for which they
were committed for trial on 4 June 2008 on the basis that they were
not brought to trial within six months of such committal.
The
facts as set out in Mr Warara's
founding affidavit are that the applicants were arrested on charges
of contravening s20 of the Criminal Law (Codification and Reform) Act
[Cap
9:23].
They have been in custody since 30 May 2007. On 4 June 2008 they were
served with indictment papers for trial before the High Court on 7
July 2008.
Subsequent
to the committal for trial the defence wrote to the prosecution on 5
June,
12 June and 2 July 2008.
In
the first two letters they sought to be furnished with documentation
and witnesses' statements. In the last letter they were reminding
the prosecution of the delay in being furnished with witnesses'
statements and the difficulties defence counsel experienced in
accessing the applicants in order to prepare their defence outline.
There
were no replies to those letters.
On
the date of trial the matter could not be heard as the defence
persisted with its complaints. The defence outline was later filed on
11
July
2008. On the other hand the state was notified of the defence's
intention to raise a constitutional challenge against the charge that
was preferred against the applicants.
On
5 August 2008 the constitutional issue was argued before HLATSHWAYO J
who reserved judgment. Judgment was handed down on 18 November 2008
whereupon the matter was referred to the Supreme Court. The Supreme
Court handed down its decision in which it dismissed the application
on 7 December 2009.
Following
the Supreme Court decision, the applicants' counsel personally
attended at the offices of the Attorney-General where he requested
that the matter be set down during the First Term of 2010. He was
advised that it was not possible to set the matter down during that
term.
In
March 2010 the defence was notified of the setting down of the matter
for 21 June 2010. During the course of the applicants'
incarceration several applications for bail have been made. There was
also an attempt to re-indict the applicants at the Magistrates Court
a week before 21 June 2010. This was successfully resisted by the
defence.
In
his heads of argument, Mr Warara
submitted that in terms of s66 of the Criminal Procedure and evidence
Act [Cap
9:07]
the Attorney-General is dominus
litis
in respect of cases he decides to prosecute. In this respect a matter
may be set down for trial even a year in advance.
He
further submitted that in terms of s160(2) an accused who has been
committed for trial but not tried within six months is entitled to
have his case dismissed. He also submitted that the provision in
question is meant to protect an accused person from lengthy
incarceration before he is brought to trial. The period in question
should be six calendar months calculated in terms of the
Interpretation Act [Cap
1:01].
Mr
Warara
further submitted that the reckoning of time is between the time
accused persons were indicted and the trial date. That period should
exclude the time the constitutional application was awaiting
determination by the Supreme Court. That is the only time the
applicants were not available for trial as the trial could not be set
down whilst the constitutional application was still pending.
The
State did not file an opposing affidavit.
I
must also point out that despite the State having been directed to
file a response to the application by 28 June 2010 what were only
filed were the State's submissions on the day of hearing. The court
was made to understand that the officer who previously attended to
this matter was ill-disposed. However, that does not absolve the
State from its obligations. At the end of the day one cannot say the
matter was opposed in the manner expected of a contested application
because effectively all the averments that were made against the
State in the applicants' founding affidavit went unanswered save
for issues of law that were addressed in the submissions.
In
its written response, the State in essence raised two aspects
regarding the delay in the matter; (i) Firstly, it is contended that
the calculation of the period within which accused persons should
have been brought to trial should take into account the times the
High Court was on vacation. In this respect, it was submitted that
the High Court was on vacation between 29 November 2009 and 12
January 2010 as well as between 1 April and 10 May 2010. The two
vacations are taken as a period that was beyond the control of the
Attorney-General as no trial could be heard during those periods.
Allied
to this submission is the contention that the six months that entitle
a dismissal of the case must run uninterrupted. In this respect
counsel for the state cited the case of Garikai
Mukuze and Another
v
S
whose correct citation is 2005 (1) Z.L.R 6 (H).
(ii)
The other contention is that state witnesses had to be secured first
before the case was set down for trial.
It
was also submitted that between 29 March and 3 April 2010 a suspect
was arrested on allegations of abetting the applicants in their
attempt to escape from custody. This necessitated a delay as the
matter had to be investigated. In this respect the suspect was tried
and convicted on 8 April 2010.
Section
160 of the Criminal Procedure and Evidence Act provides that:
“(1)
Except as is otherwise expressly provided in this Act as to the
postponement or adjournment of a trial, every person committed for
trial or sentence whom the Attorney-General has decided to prosecute
before the High Court shall be brought to trial on such date as may
be determined by the Attorney-General:
Provided
that the High Court may, on application by the accused and on good
cause shown by him, order that the trial shall take place on an
earlier date than that determined by the Attorney-General.
(2)
If a person referred to in subsection (1) is not brought to trial
after the expiry of six months from the date of his committal for
trial, his case shall be dismissed:
Provided
that any period during which such person is, through circumstances
beyond the control of the Attorney-General, not available to stand
trial shall not be included as part of the period of six months
referred to in this subsection.”
It
is clear from a reading of the above provision that the prerogative
of setting down a criminal matter for trial is that of the
Attorney-General. The only time an accused person may be granted an
earlier date is upon application before the court.
Subsection
(2) does not provide for the reckoning of the six months period.
Under
such circumstances one has to have recourse to the Interpretation
Act. In this respect s33(6) of the Act provides that:
“In
an enactment —
(a)…………………………;
(b)…………………………;
(c)
a reference to a month shall be construed as a reference to a
calendar month;
(d)
……………………….”
Since
the Act does not define a calendar month, The Shorter Oxford English
Dictionary defines it as:
“One
of the twelve months into which the year is divided according to the
calendar; also the space of time from any date (e.g. the 17th)
of any month to the corresponding date (the 17th)
of the next, as opposed to a lunar month of 4 weeks.”
Taking
the above definition, in computing time in the present matter the
court will take the date in any particular month to a corresponding
date to any other month.
Mr
Mutangadura
submitted
that a calendar month is the beginning of the month to the end of
that month.
If
one were to use that method it would present problems with any dates
that fall between the beginning and the end of a particular month. It
would leave such periods unaccounted for, which in my view was not
the intention of the legislature when s33(6) was enacted.
The
committal of an accused person for trial before the High Court occurs
when the Attorney-General serves a written notice on a magistrate in
terms of s66(1) of the Criminal Procedure and Evidence Act. This is
because in terms of s65 no accused person shall be tried in the High
Court unless he or she has been committed for trial by a magistrate
for the offence charged in the indictment.
On
committal it is a requirement that the accused person be served with
a list of witnesses the State intends to call plus a summary of the
evidence of each witness sufficient to inform accused of all the
material facts upon which the State relies.
However,
in practice the State invariably furnishes the accused with copies of
the witnesses' statements and any other relevant documents
recovered, recorded or compiled during the course of investigations.
The
effect of committal is that an accused person is detained in prison
in terms of s66(2).
Mr
Mutangadura
argued that the period of six months must be uninterrupted and in his
written submissions he referred to the case of Garikai
Mukuze and Another v S
(supra) in which he quoted the remarks of UCHENA J when he commented
on s160.
This
case was a precursor to another decision of this court reported in
2005 (1) Z.L.R 79 (H) which involved the same accused persons.
In
the first matter the accused persons had filed a court application in
which they sought the dismissal of the case against them in terms of
s160(2). Although they had been committed for trial their matter had
subsequently been set down for trial in the Magistrates Court.
Although UCHENA J did not order a dismissal on the basis that a
proper inquiry needed to be conducted regarding the delay in
prosecuting the matter, this is what the learned judge had to say in
respect of the proviso to s160 at p 11:
The
proviso to s160(2) and s160(3) provides for circumstances which
interrupt the lapse of the six months period. If the six months
period lapses without interruption then, the accused is entitled to a
dismissal of his case. It must however, be noted that this can only
be done when the court is satisfied there is no such interruption.
This should be after hearing the reasons why the case did not get to
trial within the stipulated period. In my view, dismissal cannot be
ordered after a cursory inquiry based on the applicant's affidavits
without affidavits from the investigating officer and the prosecutor
who handled the case, or an admission by the State that there are
valid reasons why the accused's case should be dismissed…….”
When
the same matter had been reinstated before the High Court and an
application was made before the criminal court the facts were that
accused persons had been remanded in custody in 2002. They were
subsequently indicted for trial whose date was set for 31 May 2004.
Initially
trial failed to commence on account of the absence of State witnesses
and pro
deo
counsel for one of the accused. Later the trial failed to proceed
because one pro
deo
counsel had been excused from the case and the trial prosecutor was
not in attendance. The matter failed to proceed on another date in
October 2004.
Although
MAVANGIRA J accepted that the absence of defense counsel was a factor
beyond the control of the Attorney-General she also held that the
unexplained absence of the trial prosecutor would be visited on the
Attorney-General. Commenting on s160 she had this to say at p86:
“I
thus find that s160(2) is meant to protect accused persons from being
unreasonably kept under committal for trial for longer than six
months when the trial has failed to take place during that period. It
is also, in my view, meant to ensure that the Attorney-General
ensures that trials of accused persons committed for trial are
expeditiously conducted. There must be a balancing of the interests
of society vis a vis the interests of the accused person. Indeed, our
constitution recognizes the right of an accused person to be afforded
a fair hearing within a reasonable time. In my view, s160(2) was
enacted in that spirit and against such backdrop. But s160(2) does
not entitle the applicants to a discharge or acquittal nor does it
relate to the running of prescription. It merely relates to the
release from committal.”
In
the present matter I hold that from the time the applicants were
committed for trial on 4
June
2008 the six months within which they should have been brought to
trial immediately commenced to run.
Between
that date and when the constitutional application was heard the
matter could not be tried because the defence had not been furnished
with certain documents which were listed or described in
correspondence addressed to the prosecution. The prosecution did not
reply to the correspondence save that the requested witnesses'
statements were availed a few days before the date of trial.
In
my view the period between committal and the hearing of the
constitutional application should be counted as part of the six
months within which the applicants should have been tried. This is
because the Attorney-General cannot be heard to argue that those were
circumstances beyond his control.
The
two cases I have referred did not deal with the issue of reckoning of
six months or the effect of interruption of that period.
In
my view the remarks by UCHENA J do not mean the six months must run
uninterrupted and that any period preceding such interruption must be
discounted. I say so because there would not have been the need for
the proviso to ss(2).
What
it means then is that, if the aggregate period between an accused's
committal and date of trial exceeds six months even though
interrupted by some other circumstances which are beyond the control
of the Attorney-General he is entitled to a dismissal.
I
am fortified in my view by a phrase in the proviso, viz
'not
available to stand trial'.
When
an accused person is committed for trial he automatically becomes
available for trial. The only time he is not available for trial
would be for example, if he is too ill or when the trial process is
interrupted by some other process like an application for referral of
a constitutional issue to the Supreme Court.
Even
when the State contends that at some stage investigations had to be
conducted in relation to a suspect who attempted to facilitate the
applicants' escape from custody, it cannot be said they were not
available to stand trial. In any event, the interruption amounted to
only a few days and would thus be inconsequential.
In
the same vein I am not persuaded that the fact that the High Court
was on vacation on two occasions cited by the State constitutes a
circumstance beyond the control of the Attorney-General.
This
is because it cannot be said the applicants were not available to
stand trial.
Whichever
way you consider it, the argument that the court vacation interrupts
the reckoning of time is dissipated when one takes into account the
definition of a calendar month.
I
did not hear the State attempt to explain why the case could not be
set down for trial during the First Term of 2010. It would not have
required the High Court not being on vacation to set down a matter
within six months that are required by s160.
In
light of the foregoing it is ordered that the case against the
applicants be and is hereby dismissed.
Warara
& Associates,
the applicants' legal practitioners
Attorney
General's Office,
respondent's legal practitioners
