ATTORNEY-GENERAL V HOWMAN 1988 (2) ZLR 402 (SC) ATTORNEY-GENERAL V HOWMAN 1988 (2) ZLR 402 (SC)

ATTORNEY-GENERAL v HOWMAN 1988 (2) ZLR 402 (SC)

Flynote

Criminal law — culpable homicide — child being pursued by accused, running into dam and drowning — accused failing to render assistance — whether liable.

Criminal procedure — acquittal at end of State case — Attorney-General's right of appeal — limited to appeal on question of law, without affecting finality of case — s 69(a) of Magistrates Court Act [Chapter 18] and s 44(6) of High Court of Zimbabwe Act 1981 — effect of — reservation E of question of law for consideration of Supreme Court — question arising "on the trial" — meaning of — decision by trial judge not to reserve question of law — whether appealable — when question of law may be reserved.

Headnote

The respondent had been indicted before the High Court on a charge ofmurdering a juvenile. The allegation was that the respondent, who was at the time chairman of a club on the banks of the Darwendale Dam, chased a group of juveniles who were trespassing on the club's premises. During the chase, the group split up; some continued on the land, pursued by the respondent, but the deceased ran into the dam, where he drowned. It was not necessary for the deceased to enter the dam to escape and the respondent was in no way responsible for the perilous situation in which the deceased found himself. The trial judge (ADAM J) acquitted the respondent at the end of the State case, finding that there was no case for him to answer either of murder or of culpable homicide.

The Attorney-General did not seek to appeal against the trial judge's judgment in terms of either s 188(3a) of the Criminal Procedure and Evidence Act [Chapter 59] or of s 44(6) of the High Court of Zimbabwe Act 1981. Instead, about a month later, acting in terms of s 25(1) of the latter Act, he requested that certain questions of law be reserved for the consideration of the Supreme Court. ADAM J declined to do so, on two grounds: firstly, that the test to be applied in determining what constitutes a prima facie case of murder or culpable homicide was well established and that there was no important point of law to be reserved; and, secondly, that a question of law arising upon the application for or decision on discharge was not one which arose "on the trial". * The Attorney-General applied for leave to appeal against ADAM J's judgment.

Held, that the phrase in s 25(1) of the High Court of Zimbabwe Act, "arises on the trial", means "comes into existence during the trial". The word "trial" connotes more than the evidential stage of the proceedings; it includes the proceedings after arraignment, up to the time the court has pronounced its verdict and sentence, if any.

Held, further, that under s 188(3a) of the Criminal Procedure and Evidence Act, the Attorney-General's has a right of appeal from a decision to acquit at the end of the State case, but that right is limited to seeking an authoritative pronouncement from the Supreme Court on a point of law, without in any way affecting the finality of the lower court's judgment. A similar right is provided by s 69(a) of the Magistrates Court Act [Chapter 18] and s 44(6) of the High Court of Zimbabwe Act, but this right does not cover verdicts given at the close of the State case and is also limited to appeals on points of law without affecting the finality of the judgment.

Held, further, that the trial court has a discretion as to whether to reserve a question of law; but if the trial court improperly refuses to reserve the question of law a mandamus may be issued to order the reservation. In any event, the wording of s 44(9) of the High Court of Zimbabwe Act makes clear that a refusal to reserve a question of law is subject to appeal.

Held, further, that the question of whether, in the words of s 188(3) of the Criminal Procedure and Evidence Act, "there is no evidence that the accused committed the offence charged" is a matter of law which is to be determined by the judge alone and which may be reserved for the consideration of the Supreme Court. If the accused is put on his defence there is no question of law to be reserved.

Held, further, that the trial judge had acted correctly in declining to reserve the question of law. No important principle of law was required to be decided; the degree of arguability necessary to justify reservation was absent; and no meaningful relief would be achieved by the Attorney-General were the application to succeed.