SIVAKO v ATTORNEY-GENERAL 1999 (2) ZLR 271 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(2) — right to fair trial — accomplice being called as witness —not warned he would be discharged from liability if he gave his evidence satisfactorily and that he could decline to answer questions which might tend to incriminate him — witness admitting to further crimes with which he was subsequently charged — effect to deprive witness of right to fair hearing

Criminal procedure — permanent stay of proceedings — application by defence lawyer on grounds of unreasonable delay in bringing matter for trial — lawyer making statement from bar and not calling applicant to testify — insufficient to establish unreasonable delay

Evidence — accomplice — prosecutor failing to inform court that witness to be treated as unconvicted accomplice — E witness not warned he would be discharged from liability if he gave his evidence satisfactorily and that he could decline to answer questions which might tend to incriminate him — contrary to interests of justice for him not be discharged — witness admitting to further crimes with which he was subsequently charged — effect to deprive witness of right to fair hearing contrary to s 18(2) of Constitution

Headnote

A person was charged in the regional court with the theft of eighteen head of cattle. The applicant was called as a witness. When the applicant gave evidence, he was awaiting trial on three charges relating to the same 18 cattle. The first charge was that he had acquired them without having reasonable cause to believe that the person from whom he was acquiring them had authority to dispose of them. The second was that he unlawfully moved them without the required movement permit. The third was that he had unlawfully failed to keep a register as required by legislation.

The prosecutor did not inform the trial magistrate that the applicant was to be treated as an unconvicted accomplice, since the main charge pending against him was a cognate crime, namely, that he had unlawfully acquired the cattle. Consequently, the regional magistrate disregarded the provisions of s 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. He did not tell the applicant that he would be discharged from all liability for prosecution for theoffence with which he had been charged provided that he fully answered all lawful questions put to him to the satisfaction of the court. Moreover, as the magistrate was not aware of the additional charges pending against the applicant, the magistrate did not apprise him of his right to decline to answer any question which might have a tendency to incriminate him in the commission of an offence.

In his evidence, the applicant admitted his involvement in the theft of the cattle and in other crimes with which he was later charged. Although the magistrate had become aware that he was an accomplice, he did not discharge him from liability for prosecution although he had given his evidence satisfactorily.

When later the applicant was charged with offences arising out of his dealing with the cattle, the defence lawyer applied for a permanent stay of proceedings on two grounds both based upon s 18(2) of the Constitution. The first was that that there had been an unreasonable delay in bringing the matter for trial. The second was that the applicant would be deprived of his right to a fair hearing if he was now to be tried for these offences. Themagistrate referred these issues to the Supreme Court.

As regards the contention that there had been an unreasonable delay: Held, that the cause of the long delay was as much the fault of the defence as the State. What was, however, fatal to this contention was that the applicant's legal practitioner had simply made a statement from the bar on the matter. This was totally insufficient. The applicant should have been called to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether he had asserted his right to be tried within a reasonable time; and even more importantly, to whether any actual prejudice had been suffered as a result of the delay.

As regards the contention it would be unfair to try the applicant on the basis of the evidence elicited from him as an accomplice:

Held, that as regards the first charge, this was a cognate charge to that of theft of the cattle. The applicant had satisfied the criteria for him to be granted a discharge from liability. The applicant was an accomplice witness who was testifying for the prosecution, the prosecutor knew that applicant was an accomplice to the theft and the applicant had answered the questions fully, including questions of an incriminatory nature, and to the satisfaction of the court. It would therefore be contrary to the interests of justice for the State to proceed against him. To permit it to do so would offend against his right to a fair hearing.

Held, further, as regards the other two charges, as the thief was not being charged with these offences, the applicant was not an accomplice witness with respect to the incriminating evidence he gave concerning these offences.

Held, further, that what is demanded by s 18(2) of the Constitution is that an accused is given a fair hearing. Ultimately, fairness is an issue that has to be decided objectively on the facts of each case. A value judgment must be exercised. However, it must not be assumed that a breach of the common law and the statutory right against self-incrimination will invariably render the evidence inadmissible against the accused in subsequent proceedings. This is exemplified where an accused has incriminated himself in evidence given in a bail application. Held, further, that, in the present case, as the applicant had not been warned of his right to decline to answer questions which might incriminate him in other offences, it would be unfair and in contravention of s 18(2) of the Constitution to use such evidence against him in a subsequent trial for those offences. The applicant was ignorant of his rights and the incriminatory evidence was elicited from an unwary and ignorant person who was not trying to derive any benefit for himself in giving this testimony. Consequently, such evidence should be excluded. This did not mean that the State was not entitled to bring the applicant to trial on these charges; only that when doing so it may not use the evidence given by him in testifying against the thief.