S v KUROTWI & ANOR (2) 2011 (1) ZLR 208 (H)

Flynote

Criminal procedure — charge — amendment of — accused indicted to High Court — accused not having pleaded — courses open to prosecutor wishing to amend charge

Headnote

The two accused, along with three other persons, were indicted for trial before the High Court on a charge of fraud. The charges against the other three persons were withdrawn before plea. The accused were then served with a fresh charge and summary of the State case, different from those served on them by the magistrate at the time they were indicted to the High Court for trial. They objected to pleading to the fresh charge, arguing that it was improper and irregular for the prosecutor to prefer charges different from those upon which they were committed for trial without first seeking the leave of the court to do so. They argued that they had prepared their defence on the basis of the original charge, and it was therefore prejudicial for them to plead to the fresh charge which was based on a different set of facts, although the charge remained one of fraud. It was further argued that the original charge was framed in such a way as to omit an essential element which had since been incorporated into the fresh charge. Finally, it was argued that, after the indictment, it was incompetent for the State to unilaterally amend, substitute or vary the charge and summary of the State case without the leave of the court at a time when the trial was already "pending:" before the court.

Held, that in terms of s 202 of the Criminal Procedure and Evidence Act [Chapter 9:07], where a need arises to amend the charge in the course of a trial, it is only the court which can authorize the amendment, after considering the question of prejudice. Here, the amendment was unilaterally made by the State before plea but after committal for trial

in terms of s 168 of the Act. Once the accused had been indicted, the High Court was seized with the matter and all procedures relating to the trial of the accused were firmly under the direction and control of the court. The accused is entitled as of right to demand that he be tried on that charge. The State is not at large at that stage to alter, amend or substitute the charge without the court's permission. Held, further, that while, in terms of s 320 of the Act, the Attorney-General has a right to withdraw a charge before plea and prefer new charges against an accused person, the condition precedent is that he must first withdraw the original charges against the accused before he can proceed to prefer fresh charges against the accused. In casu, a new charge could not be brought because the original one had not been withdrawn. If the prosecutor in a High Court trial wants to amend the charge, then he must apply to the court and the court will make a determination. If he wants to prefer new charges against the accused, then he must first withdraw the original charge before plea. It is up to the prosecutor which way to proceed.