S v DUKE & ANOR 1988 (2) ZLR 385 (SC)

Flynote

Criminal procedure — trial — plea — of guilty — essential elements — D requirement to explain carefully — admissions on plea — requirement to clarify exactly what is being admitted — multiple accused — each accused's answers to be recorded separately — fair trial — requirement for — unrepresented accused — when court should consider ordering legal representation to ensure fair trial.

Criminal E procedure (sentence) — minimum sentence — need for court to explain meaning and implications of — Parks and Wild Life Act 1975 — s 115(4a) — period of imprisonment not specified as being minimum period in default of payment of minimum fine — court free to make its own assessment as to appropriate period.

Headnote

Section F 115(4a) of the Parks and Wild Life Act 1975 provides a minimum sentence for certain offences under the Act. It does so by prescribing "a fine of not less than $15 000 or imprisonment for a period of not less than five years, or both such fine and imprisonment". This phraseology, which is an unusual way of prescribing a minimum sentence, does not mean that the minimum period of imprisonment in default of payment of the fine is one of five years; the court is entitled to make its own assessment of a proper alternative to the $15 000 fine. It is only if the court decides to impose not a fine, but imprisonment, that five years is the minimum period to be imposed.

Where there is a plea of guilty, judicial officers must be careful not to regard every fact as proved just because it is admitted. Where the accused admits "possession" of a prohibited article, the court must establish just what the accused is admitting, possession being a difficult legal concept. A similar caution applies to the explanation of the charge and the elements of the offence. Section 255(3) of the Criminal Procedure and Evidence Act [Chapter 59] requires that the court's explanation, any statements by the prosecutor and the reply and statement by the accused be recorded. This record should be full. Where there is more than one accused person, each should be dealt with separately.

In cases where the law provides a minimum penalty unless special circumstances exist, the accused should be told what the penalty is and the meaning of special circumstances. This should be done early in the trial. Allied to this enquiry is the broader one of whether the accused will have a fair trial. The court should consider whether the case is a complex one, from the point of view of such matters as - - (a) whether the ascertainment of the facts includes difficult legal concepts such as "possession", "consent" or "knowledge";

• (b) whether the facts themselves are complex or difficult;
• (c) whether there is a need to prove "special reasons" or "special circumstances" to avoid a minimum sentence;
• (d) whether a long prison sentence is likely to follow conviction.

In such cases, the court should ask itself: - (1) even if the accused has pleaded guilty, whether it would nonetheless be appropriate to enter a plea of not guilty in terms of s 255A of the Criminal Procedure and Evidence Act;

• (2) if the accused is unrepresented, whether it would be fair and appropriate to advise him of the complexities of the matter and to ask him if he has considered obtaining legal representation; and
• (3) if satisfied that the accused should have legal representation but cannot afford it, whether the court should certify that legal representation be provided under the Legal Assistance and Representation Act [Chapter 66].

In most cases, a plea of guilty will be unequivocal and the procedures provided by s 255 of Chapter 59 will ensure a fair hearing, as will the use of the procedure provided by s 255A. In other cases, it will be enough for the magistrate to explain legal complexities and to ask if the accused wants to engage legal representation at his own expense. Only in the minority of cases should the court conclude that there cannot be a fair trial without legal representation.