S v HURLE & ORS (1) 1998 (2) ZLR 34 (H)

Flynote

Criminal procedure — trial — accused — presence of — requirement for when verdict is delivered — one of several accused persons absenting himself after all evidence given and arguments presented — permissible to give judgment in respect of all accused, even in the absence of one

Headnote

Three persons were charged with murder. All three were on bail during the course of the trial and attended faithfully throughout the proceedings. At the close of argument, the court reserved its decision and postponed the trial for a little over 2 weeks for verdict. By that time, the first accused had taken fright and disappeared. A warrant for his arrest was issued, and a further postponement ordered. The question arose whether it was permissible to deliver verdict in the absence of the first accused, the other accused being present.

Held, that although the Constitution and the Criminal Procedure and Evidence Act [Chapter 9:07] require that, subject to certain exceptions, the trial of a person charged with a criminal offence must take place in his presence, it was questionable whether the word "trial" should be interpreted to exclude the judgment. The requirement that the trial should take place in the presence of the accused is one going back to the Roman law, and is based upon principles of natural justice that he be given an opportunity to defend himself. The protection secured by the Constitution is also designed to ensure that an accused be given a fair hearing before being condemned. The giving of judgment involves no participation by the accused at all; there is nothing further that he can say or do before judgment is given. Where the trial is postponed to a specific date expressly for the handing down of judgment and the accused voluntarily absents himself, it would be right to hold that he must be taken as consenting to the delivery of judgment in his absence. The accused ought not to expect the unilateral power by his wrongful absence to frustrate the giving of judgment. Undoubtedly, though, sentence, in the event of a conviction, could not be passed until the accused could be brought before the court.

Held, therefore, that the court had a discretion to pronounce judgment in the absence of the accused.

Held, further, that such discretion should be exercised in favour of giving judgment: the other accused had a legitimate and pressing concern in hearing their fate; the State had an interest in hearing the result; it would be impracticable, because the findings in respect of the accused were inextricably intertwined, to attempt to excise findings in respect of the one who was absent from those in respect of the two who were present; and it would be artificial to deliver a judgment concerning all three but to withhold the verdict in respect of one, when the judgment must make clear what the verdict would be.

Cases cited

Poli v Min of Finance 1987 (2) ZLR 302 (S)

R v Jones [1972] 1 WLR 887 (CA)

R v Lee Kun [1916] 1 KB 337

S v Mupatsi 1998 (1) ZLR 224 (H)

S v Sparks & Anor 1972 (3) SA 396 (A)

R v Streek (1826) 2 C & P 413; 172 ER 187 B