S v NYANDORO 1987 (2) ZLR 66 (S)

Flynote

Criminal procedure — plea — accused should plead personally — counsel should not tender plea unless confirmed by accused.

Evidence — murder — defence evidence — accused not to be allowed to acquiesce in conviction without leading evidence to establish intent.

Headnote

Accused persons should plead personally to an indictment, and counsel should not tender a plea on their behalf unless the accused are asked whether they agree with the plea and confirm it.

The appellant's counsel tendered a plea of guilty to murder with actual intent, and then informed the court that the defence was not calling any evidence "apart from the defence outline". In fact, in the defence outline, the appellant had clearly stated that he did not intend to kill and had aimed a shot at the deceased to frighten him away. The appellant was not called by his counsel to testify and was convicted of murder with actual intent and sentenced to death without any evidence being led for the defence.

Held, that no person should face a conviction of murder with actual intent without evidence from the defence to establish whether the offence was committed with actual or constructive intent.

Held, further, that there had not been a fair trial and justice was not done. The conviction and sentence must be set aside and a new trial ordered before a different judge and with a different legal practitioner to represent the appellant.