S v C (A JUVENILE) 1997 (2) ZLR 395 (H)

Flynote

Criminal law — defences — youthfulness — presumption that child under 14 doli incapax — child of 14 or over — possibility that child is doli incapax cannot be ignored, especially when facts suggest naughtiness rather than criminal intent

Criminal procedure — juvenile offender — decision as to whether to prosecute — whether Attorney-General's authority required — absence of such authority — effect — steps a magistrate should take on the arraignment of a child

Criminal procedure — juvenile offender — unrepresented offender — court's duty towards

Criminal procedure (sentence) — general principles — juvenile — probation officer's report — need for before court can properly decide whether imprisonment or institutionalization is appropriate

Headnote

The accused, a girl of 14, was charged before a magistrate with indecent assault. She was not represented by a legal practitioner nor assisted by a parent or guardian. She pleaded guilty, was convicted and was sentenced to a wholly suspended term of imprisonment.

Held, that where a child is put on trial an enquiry into the child's age must be made, because from that enquiry many other important considerations flow. If the child was under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next decision is whether as a matter of policy such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be more appropriate. Even if the child is over 14, the circumstances of the case might suggest that he may have acted without forming or being able to form a criminal intent.

Held, further, that the decision as to whether to prosecute a child is in practice reserved for the Attorney-General himself. If authority is not obtained, this is an irregularity, though not one which could justify the upsetting of a conviction. Nevertheless, the practice of obtaining authority has the whole-hearted approval of the High Court. If no authority has been obtained, the magistrate should use his moral and persuasive authority, to ensure that the prosecutor seeks authority from the Attorney-General.

Held, further, that the concept of placing a juvenile, particularly a very young one, unrepresented and unassisted by its parents, on trial before a magistrate is inherently repugnant. In a civil proceeding, such a child would be deemed incapable of enforcing or defending its rights. To expect such a child to conduct his own defence in a criminal trial is to expect far too much. It is questionable whether the child would be afforded its constitutional right to a fair trial, without the sympathetic and active involvement of a magistrate assiduous in safeguarding the position of the unfortunate child in such a distasteful milieu.

Held, further, that a court should be extremely slow and reluctant to subject a young person to the punishments prescribed for adults rather than to afford the child the benefit of institutional care. The discretion as to which course to follow cannot be properly exercised if the magistrate does not call for the report and recommendation of a probation officer. While in some cases such a report is unnecessary, in most the failure to receive the report of a probation officer before exposing a child to adult punishment is a serious misdirection.

Conviction set aside. The child ordered to be brought before a juvenile court to be dealt with as a child in need of care.