State v Lancelot Isaac

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HH 424-12
CRB NO. 464/12
STATE
versus
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STATE
versus
LANCELOT ISAAC

HIGH COURT OF ZIMBABWE
UCHENA and CHITAKUNYE JJ
HARARE, 2 November 2012.

Criminal Review

UCHENA J The convicted person initially pleaded guilty to a charge of theft as defined in s 113 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The facts on which he was being charged were read to him. The magistrate asked him if he understood them and he in response said he did. The magistrate further asked him if he had anything to add or subtract. In response the convicted person told the court that the complainant had employed him as an ice-cream vendor and given him ice cream pads for sale and a push-cart. He fell ill and took the proceeds of the ice cream sales and push cart to his house. He used the proceeds of the sales to buy medication He requested his young brother to phone the complainant and inform him of his illness. The complainant came with the police and caused his arrest.

On hearing the convicted person’s additions to the state’s outline which was used in place of the Agreed Facts, the magistrate altered his plea to one of not guilty. He immediately asked the state to open its case without giving the convicted person an opportunity to give his defence outline. The trial progressed to the defence case, after which the convicted person was convicted and sentenced to 6 months imprisonment. A sentence of 4 months imprisonment which had been suspended after a previous conviction was brought into effect

The record of proceedings was forwarded to the Senior Regional; Magistrate Harare for scrutiny, who inquired from the trial magistrate why he had not given the convicted person an opportunity to give his defence outline as provided by s 188 of the Criminal Procedure and Evidence Act (Cap 9:07) the (CP&E ACT).
 In response the trial magistrate said since the convicted person had given a detailed response which led to his plea being altered to not guilty, he felt that it was no longer necessary to give the convicted person that opportunity and to comply with s(s) 188 and 189 of the CP&E Act.

Section 188 of the CP&E Act provides as follows;

“In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms of section one hundred and eighty-two—

(a) the prosecutor shall make a statement outlining the nature of his case and the material facts on which he relies; and

(b) the accused shall be requested by the magistrate to make a statement outlining the nature of his defence and the material facts on which he relies and, if he is not represented by a legal practitioner, the provisions of subs (2) of s one hundred and eighty-nine shall be explained to him.”

A reading of s 188 of the CP&E Act reveals that whether the accused person pleads guilty or his plea is altered to one of not guilty the prosecutor shall make a statement outlining the nature of his case and the material facts on which he relies; and the accused shall be requested by the magistrate to make a statement outlining the nature of his defence and the material facts on which he relies. The fact that the convicted person had given a detailed explanation did not entitle the magistrate to dispense with this mandatory procedure, which in a trial of an unrepresented accused imposes on a magistrate the duty to explain to him the provisions of subs (2) of s one hundred and eighty-nine.

The failure by the magistrate to comply with the provisions of s 188 is an irregularity. The convicted person proceeded to his defence case without having been given an opportunity to give an informed defence outline, and without being informed of the provisions of subs (2) of s 189. Section 189 (2) authorise’s a court to draw adverse inferences if an accused person fails to mention any relevant fact he would have been expected to mention in his defence outline.

In this case the convicted person was prejudiced by the magistrate’s failure to comply with the procedure laid down in section 188. His conviction and sentence will be set aside, and the case will be referred back to the magistrate’s court for trial de novo before a different magistrate.

In the result the convicted person’s conviction and sentence are set aside. The case is referred back to the magistrate’s court for trial de novo before a different magistrate.

CHITAKUNYE J CONCURS
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