S v MUSHAYANDEBVU 1992 (2) ZLR 62 (S)

Flynote

Constitutional law — right to be legally represented — s 18(2)(c) & (d) of Constitution — prosecutor not informing court that accused has engaged D lawyer but lawyer unavailable — unsophisticated accused not telling court about this — breach of right to be legally represented at own expense

Criminal procedure — trial a "travesty of justice" — prosecutor notinforming magistrate that accused's lawyer not available — prosecutor withholding evidence favourable to accused — magistrate convicting on basis of guilty plea even though clear from State outline that accused raising defence to charge.

Headnote

The appellant, an unsophisticated woman, had pleaded guilty to contravening s 39 (c) of the Firearms Act [Chapter 308]. The basis of the charge was that she had shot at and wounded the complainant. She had engaged a lawyer to defend her but he was unavailable on the day of the trial due to previous commitments. The appellant had received only a few days' notice of the trial. The prosecutor knew that the appellant had engaged a lawyer who was unavailable for the trial but did not inform the court about this. The appellant herself did not tell the court about the position with her lawyer. The prosecutor also failed to disclose to the court certain facts favourable to the appellant of which he was aware. It was clear from the facts in the State outline that the appellant had maintained that she was acting in self-defence.

The trial court convicted the appellant on the basis of her guilty plea and sentenced her to an effective term of imprisonment of six months. On appeal the court set aside the conviction and sentence and remitted the case for trial de novo. The court found that the trial was a "travesty of justice" because of a number of fatal defects in the proceedings. These were

• i) Theappellant's constitutional right to be represented by a lawyer at her own expense had been breached, as the prosecutor should have told the court that she had engaged a lawyer who was unavailable on the day of the trial; it was unfair to expect an unsophisticated accused to realise that she could bring to the court's attention this matter.
• ii) The prosecutor had acted improperly in withholding certain evidence from the court which was favourable to the appellant and which would have precluded the magistrate from accepting the guilty plea.
• iii) It was clear from the State outline that the appellant was claiming to have acted in self-defence and the magistrate had therefore misdirected himself in accepting the guilty plea.