S v MAZAMBANI 2012 (2) ZLR 444 (H)

Flynote

Criminal procedure — record — status of — need for full record to be made during trial — unreliability of subsequent and belated explanation from magistrate in answer to query from scrutinising regional magistrate or reviewing judge

Headnote

The magistrates court is a court of record. A trial court is therefore duty bound to keep an accurate record of the proceedings and of the scrutiny cover. The record of proceedings must be considered by the scrutinizing regional magistrate and reviewing judge as it appears, and not as the trial magistrate interprets it on inquiry being made. Members of the public who have access to the record of proceedings will understand the proceedings as per the record. It is therefore important that judicial officers presiding over courts of record keep an accurate record of the proceedings. A court record should tell the whole story of what happened during the trial. It cannot be supplemented by an explanation from the trial magistrate on details which should be in it. The rationale for the rules prohibiting review and appellate tribunals from having recourse to matters extraneous to the actual record is clear, as is the prohibition against the correction and reconstruction of records except in accordance with defined rules, and in only exceptional cases. It is inconceivable that a magistrate who hears several cases per day can recall what happened in a particular case months later on being questioned by a scrutinizing regional magistrate. A scrutinizing regional magistrate or reviewing judge cannot rely on such a belated and unprocedural reconstruction or correction of the record.

The duty of judicial officers who find themselves presiding at a trial in which the facility of a mechanical recorder is not available is to write down completely, clearly and accurately, everything that is said and happens before them, which can be of any relevance to the merits of the case. They must ensure that they do not record the evidence in a way which is meaningless or confusing or does not give the real sense of what the witness says. They must remove obscurities of language or meaning whenever possible by asking questions. This is because the record kept by them is the only reliable source of ascertaining what took place and what was said, and from which it can be determined whether justice was done. A failure to comply with this essential function, where the deficiencies in the transcript are shown to be substantial and material, will constitute a gross irregularity necessitating the quashing of the conviction.

Failure to ask the accused whether he wishes to give evidence is an irregularity necessitating the setting aside of a conviction, though in proper cases an appeal court may remit the matter for the correct questions to be put. The failure to explain to an accused who has misunderstood his right to give evidence or the other courses open to him, and what his rights really are, is also an irregularity justifying an appeal court in setting aside the conviction. The fact that the accused has been informed of these matters should be recorded; it is a fatal irregularity not to record this fact.