S v OSBORNE 1989 (3) ZLR 326 (S)

Flynote

Appeal — remittal to trial court for further evidence — when Supreme Court's right should be exercised.

Criminal law — Parks and Wild Life Act 1975 — s 47(2)(a) — hunting without a permit — section does not cover situation where hunter contravenes term or condition of permit.

Criminal procedure — verdict — competent verdicts — whether conviction for contravening s 110(8) of Parks and Wild Life Act competent on charge of contravening s 47(2)(a).

Headnote

Under s 47(2)(a) of the Parks and Wild Life Act 1975, it is an offence to hunt animals except in terms of a permit issued under subs (4). Section 47(2) governs situations where a hunter does not possess a permit granted by the appropriate authority for the land where the hunting took place. It does not govern the situation where a hunter who possesses a permit hunts more than his allocated quota of animals. This situation is governed by s 110(8) of the Act, which makes it an offence to contravene any term or condition of any authority, permit or licence granted or issued in terms of the Act.

Since an offence under s 110(8) is less serious than one under s 47(2)(a), on a charge of contravening s 47(2)(a), a verdict of contravening s 110(8) could be substituted, provided that no prejudice would result to the accused: ss 210 and 211 of the Criminal Procedure and Evidence Act [Chapter 59].

Before the Supreme Court, on appeal, or a trial court may convict a person of a lesser offence than that actually charged, it is necessary that there be evidence upon which such an alternative verdict might be granted. If a verdict of contravening s 110(8) is to be reached, it would be essential for the State to produce the terms and conditions of the permit to establish that the accused was in breach of them.

The Supreme Court has the power, given by s 15(d) of the Supreme Court of Zimbabwe Act 1981, to set aside a conviction and to remit the case to the court a quo for further hearing. However, where there has been no mistrial, this power is sparingly exercised. Where the prosecution wishes to lead evidence that it ought to have led at the trial, the following requirements must be met:

• (a) there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence was not led at the trial;
• (b) there should be a prima facie likelihood of the truth of the evidence;
• (c) the evidence should be materially relevant to the outcome of the trial.