S v KAWAREWARE 2011 (2) ZLR 281 (H)

Flynote

Criminal procedure — review — automatic review or upon referral by scrutinising regional magistrate — consideration of whether proceedings in lower court are in accordance with "real and substantial justice" — meaning — what constitutes "real and substantial justice" — must broadly satisfy essential requirements of law and practice — what reviewing judgemust consider in making assessment — scrutiny by regional magistrate of proceedings in a lower court — similar principles apply

Words and phrases — "real and substantial justice" — meaning of — must broadly satisfy essential requirements of law and practice

Headnote

e In scrutinising criminal proceedings terms of s 58(3)(a) of the Magistrates Court Act [Chapter 7:10], all the scrutinising regional magistrate is required to do is to satisfy himself that the proceedings are in accordance with real and substantial justice. If they are, he should certify them. If he is in doubt, he should refer them for review by a judge of the High Court. A judge of the High Court reviewing criminal proceedings ofan inferior court is required by s 29(2) of the High Court Act [Chapter 7:06] to determine whether or not the proceedings are in accordance with real and substantial justice. If they are, he should confirm the proceedings. If they are not, he can withhold his certificate, alter or quash the conviction, or reduce or set aside the sentence as the circumstances of the case may require.

? For the purposes of both s 58(3) of the Magistrates Court Act and s 29(2) of the High Court Act, "real and substantial justice" is the considerable judicious exercise of judicial authority by the trial court, which satisfies, in the main, the essential requirements of the law and procedure. Failure to comply with minor requirements, minor mistakes and immaterial irregularities should, however, not result in the scrutinizing or reviewing.

judicial officers' refusal to certify proceedings as being in accordance with "real and substantial" justice. The critical consideration is whether the proceedings broadly satisfy the requirements of justice.

"It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even it is severer than one that the court would have imposed, sitting as a court of first instance, this court will not interfere with the discretion of the sentencing court" (dicta per Korsah JA in S v Nhumwa S-40-88 followed). This applies with equal force to a scrutinizing and reviewing judicial officer. His duty is merely to be satisfied that real and substantial justice has been done.

The main features to look out for in scrutinising or review proceedings are:

• the correctness of the charge preferred;
• the agreed facts or State and defence outlines;
• compliance with statutory requirements in taking a plea of guilty or in conducting a trial where the accused pleads not guilty;
• the acceptance or proof of the facts on which the charge is based;
• the assessment of evidence i.e matching of the law and the accepted or proved facts;
• the trial court's reasons for judgment;
• the correctness or otherwise of the conviction; and
• the justifiability of the charge or sentence.

With regard to sentence, since the codification of our criminal law, all sentences are provided for in the Criminal Law Code [Chapter 9:23] or in the statute which creates the crime charged. All the reviewing or scrutinizing judicial officer should do is check whether the sentence suits the offence and the offender, and is within the range of sentences provided for in the Code or other statute. He must also check the trial court's reasons for sentence to determine whether or not the correct sentencing principles were applied in passing sentence. Where a crime was committed under common law before codification, the judicial officer should be guided by precedents in similar cases. In all cases, the scrutinising or reviewing judicial officer should bear in mind the trial court's sentencing discretion, and not interfere unless the sentence imposed induces a sense of shock or unless the trial court misdirected itself in a manner which warrants the intervention of the reviewing judge.