S v CHAWIRA 2011 (2) ZLR 210 (H)

Flynote

Appeal — criminal matter — referral to trial court for trial de novo — referral not proper where evidence led at first trial was not sufficient to sustain a conviction

Criminal procedure — trial — date — "fast tracking" of trials in magistrates courts — such procedure permissible provided a fair trial ensues — effect D of failure to grant postponement on request

Evidence — affidavit — production of — notice required — affidavit produced without requisite notice and without accused's consent — such affidavit not admissible

Headnote

The practice of "fast tracking" criminal trials is not specifically provided for by that name in the Criminal Procedure and Evidence Act [Chapter 9:07], but that does not mean it is an unlawful procedure. It is, in fact, a useful procedure which, if well managed, helps to contain and or reduce the courts' backlogs of criminal cases and ensures the delivery of timeous justice. All that has to be done is to ensure that it is used in compliance with the provisions of the Act and other laws which provide for a fair trial. Under s 163 of the Act, when an accused person is arrested and is to be prosecuted in the magistrate's court, must shall be brought to trial on the next possible court date, which means on the day when the court will be sitting next after the decision to prosecute him in the magistrate's court will have been made. This, however, does not mean the trial has to start on that day without fail. It is desirable that it should, but regard should be had to the provisions of s 165 of the Act which provides for postponements where necessary.

Undue haste in bringing a person to trial could constitute an irregularity. The haste could be due to the refusal of an accused person's request for a postponement to enable him to prepare for the trial or to engage the services of a legal practitioner. It could also be due to the trial proceeding without complying with the requirements of a fair trial. However, in the absence of a valid request for the postponement of the pending trial, and if the trial complies with the requirements of a fair trial, a magistrate's court can proceed with an accused person's trial on the "next possible court day", as provided by s 163. magistrate's failure to ask the accused if he needs the services of a legal practitioner is, on its own, not a ground for upsetting the conviction. However, if the accused applies for a postponement, the magistrate would err if he ignores the accused's request and orders the trial to proceed in spite ofsuch a request, as the request would have been made on the accused's first appearance in court.

In terms of s 278(11) of the Act, an affidavit is admissible in evidence if three days' notice has been given or if the accused consents to its production without his having been given such notice. The consent of an unrepresented accused person can only be valid if his right to such notice is explained to him before he is asked whether or not he consents to its production without the requisite notice. It is not enough to merely ask if he consents to the production of the affidavit, as there is need for him to consent to its production in general and to consent to its production without the statutorily required three days notice of its production. If the affidavit is produced without the requisite notice or consent, it will not have been properly produced and cannot be used as evidence against the accused.

It would not be proper for an appeal court to refer a criminal case to the trial court for trial de novo where the evidence led before the first trial was not such as would sustain a conviction.