S v JOHN 2013 (2) ZLR 154 (H)

Flynote

Criminal procedure — review — incomplete proceedings — when a superior court may interfere — refusal to grant discharge at end of State case — no evidence linking accused with offence — accused being put on his defence to "clear" his name — superior court entitled to interfere

Headnote

The applicant was charged with fraud, the allegation being that he had misrepresented that he was the new owner or director of a certain company, the original owners and directors of which had emigrated. He was alleged to have fraudulently drawn up certain company documents and filed them with the Registrar of Companies. At the close of the State case the applicant applied for a discharge. The application was based on the alleged glaring defects in the charge and the evidence led. The application was refused and some weeks later the applicant filed an application for review, challenging the magistrate's decision to put him on his defence. Shortly after that, the applicant applied for a stay of the trial pending the determination of the review application. That application was also refused, the magistrate ruling that he would not stop the proceedings unless an order to that effect was obtained from the High Court. The applicant then filed an urgent chamber application, seeking a stay of the trial proceedings in the magistrates court, pending the determination of the application for review.

The applicant showed that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies, who was alleged to have been prejudiced, had actually exonerated him. The only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the company. The magistrate, in ordering that the applicant be put on his defence, said that he did so for the applicant to "clear" his name. The respondents argued that superior courts normally refrain from interfering in uncompleted proceedings and that there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant were aggrieved by the outcome, he could always appeal.

Held, that generally, the superior courts do not encourage the bringing of unterminated proceedings for review, but there may be circumstances which may justify the reviewing of unterminated proceedings. An application of this nature could only succeed if the application for review has prospects of success. A superior court will normally intervene only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is so clearly wrong as to seriously prejudice the rights of the litigant.

Held, further, that a court must acquit at the close of the State case where (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) where the prosecution evidence is so manifestly unreliable that no reasonable court could safely act on it. The question whether at the close of the State case there is, or there is no, evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are patently conspicuous. The magistrate, despite glaring deficiencies in the State evidence, nonetheless failed to consider that there was no evidence linking the accused to the crime. There was thus every likelihood that the review court might find that that there was a misdirection so gross as to warrant interference with the trial before it was completed. The review court might also find that the directive by the magistrate that the applicant be put on his defence to "clear" his name was irregular and amounted to a shifting of the onus to the applicant to prove his innocence.

— Held, further, that in weighing the balance of convenience between the need for a judicial officer to manage his court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice, the balance favoured the postponement of the trial to — allow the review application to be heard.