PARSON & ANOR v CHIBANDA NO & ANOR 2013 (2) ZLR 209 (H)

Flynote

Criminal procedure — plea — plea and exception made together — court's discretion as to which to hear first — exception upheld — accused not entitled to verdict — issues raised by plea must still be tried

Headnote

The applicants pleaded not guilty in the magistrates court to a charge of fraud. At the time of pleading they also excepted to the charge on the ground that it did not disclose an offence. The exception was upheld and the magistrate ordered an amendment to the charge. They applied to the High Court for a stay of the criminal proceedings instituted against them pending the determination of a review application that had been filed with the court. It was argued that because the applicants had pleaded and excepted at the same time and the exception was upheld, the trial court could not order that the charge be amended and should have ordered the discharge of the applicants. State counsel argued that where an accused pleads not guilty, irrespective of whether he has also excepted, the matter proceeds to trial.

Held: it is not correct to say that once an accused person pleads and excepts together, then he is entitled to a verdict. This is because an objection to a defective charge or indictment can only be made by way of exception in terms of s 170 of the Criminal Procedure and Evidence Act [Chapter 9:07]. A court before which an exception is made has a discretion to order an amendment if this does not prejudice the accused in his defence. The trial court was entitled to order the amendment mero motu. In any event, once an accused pleads to a charge the issues raised by such plea must be tried. The applicants had filed a defence outline in which they denied the charge. That on its own meant that they were not prejudiced in their defence. The charge was defective, but a defective I charge may be cured by evidence: s 203 of the Act, and the outline of the State case made clear what the allegations were against the applicants. There was thus no prospect of success in the review proceedings that had been instituted.