S v MUTERO & ORS 2014 (2) ZLR 139 (H)

Flynote

Criminal procedure — record — what record must show — plea of guilty — explanation of charge and elements and accused's replies thereto — need to record fully what is said — verdict — failure to give reasons for verdict — a fatal irregularity — sentence — failure to give reasons for — not necessarily a fatal irregularity

Criminal procedure — review — purpose of — High Court's constitutional duty to supervise lower courts — need for review matters to be dealt with expeditiously

Headnote

Judges of the High Court have a constitutional duty to supervise the magistrates courts and other subordinate courts. That supervision is confined to how they should apply substantive and procedural law, and can be done through review and appeal judgments. This ensures that there is no interference with their decision-making process. Administrative supervision is the responsibility of the administrative structure within and outside the magistracy. It is imperative to ensure that the review system, which is aimed at providing a curb on any misdirected or arbitrary exercise of power, is administered efficiently and speedily. A magistrate should not live in fear of reviewing judges, constantly looking over his shoulder, but should regard the reviewing judge as the second member of a two man team. The reviewing judge is not there to criticise or nit-pick or show off his knowledge; he is there to assist, as far as he is able, in the administration of justice and to ensure that accused persons receive fair treatment. The review system complies with s 165(3) of the Constitution, as it ensures judicial independence for magistrates by only allowing High Court judges, who are senior judicial officers, to confirm or correct on review or appeal a magistrate's work, at the end of the proceedings, though in exceptional cases a judge can review proceedings before they are finally determined. The judge's supervisory and review powers creates a buffer between a magistrate's judicial work and the supervisory role of purely administrative supervisory structures. Section 164 ensures that a magistrate's work is only interfered with by a constitutionally designated officer, exercising constitutionally conferred powers. The High Court and all who deal with the submission of criminal review records from lower courts must always remember that reviews must be dealt with urgently. Section 57 of the Magistrates Court Act requires magistrates to submit reviews for scrutiny or review within one week of the determination of the proceedings. Section 58(3)(b) of the Act requires regional magistrates to refer cases they are in doubt of to the registrar of the High Court as soon as possible. Section 57(4) requires the Registrar to lay the review records before a judge in chambers "with all convenient speed". These requirements apply with equal force to cases which are referred for review in terms of s 29(4) of the High Court Act. Once the need for review is identified, the record of proceedings must urgently be called for by the judge or be urgently referred to the registrar by the referring officer or person. The registrar must, as he should do in the case of normal reviews, "with convenient speed" place the record of proceedings, before a judge for review. Such records call for urgent attention because the convicted persons will already have been prejudiced because their cases will not have been referred for review in terms of s 57. They will already have suffered delays.

The magistrates court is a court of record. Section 5(1) of the Magistrates Court Act provides that every magistrate's court "shall be a court of record." It is therefore imperative that a magistrate must record the proceedings as they progress. Failure to record proceedings is therefore a serious irregularity which affects the integrity of the proceedings. It is not acceptable to rush through trials with a view to recording the rest of the proceedings retrospectively in chambers. It is inconceivable that a judicial officer can recall, while in his chambers, the details of each of several rushed trials and accurately record what he failed to record during the proceedings. The integrity of a court record depends on the faithful and diligent record keeping by a judicial officer, if the proceedings are not being recorded mechanically or by a short hand writer. If the judicial officer fails to do this, the trial becomes irregular and irredeemable. It must be set aside.

The recording of proceedings is of critical importance because no decision can be made in the absence of a record. The trial court itself must rely on the record to arrive at a verdict. The scrutiny, review and appeal courts also depend on the record to determine the validity of the trial magistrate's decision. Where an accused person pleads guilty in the magistrates court, s 271(2)(a) and (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] creates two different procedures through which pleas of guilty may be accepted and proceeded with. In terms of s 271(2)(a), the court can convict without putting the facts and elements to the accused. That section can, however, only be used if the court is satisfied that the sentence to be imposed does not include (i) imprisonment without the option of a fine; or (ii) a fine exceeding level three. Where the court is of the opinion that the offence merits any of those punishments, or if requested thereto by the prosecutor, it proceeds in terms of s 271(2)(b). The court must record all it will have done under that procedure. Section 271(3) requires the court to record the explanation of the charge and the essential elements of the offence; and any statement of the acts or omissions on which the charge is based referred to in subparagraph (i) of that paragraph; and the reply by the accused to the inquiry referred to in subparagraph (ii) of that paragraph; and any statement made to the court by the accused in connection with the offence to which he has pleaded guilty. A failure to record what s 271(3) says should be recorded is a fatal irregularity, because without such a record it cannot be said that the accused understood the charge, the facts on which it is based and its elements. The accused is entitled to respond to the inquiry and to make any statement to the court in connection with the offence. One cannot comply with the provisions of s 271(3) by merely noting "facts read elements explained and canvassed etc". The record must show how this was done and how the accused responded to the reading of the facts, explanation and canvassing of essential elements. It is the accused's responses which determine whether or not the accused's plea should be altered to one of not guilty in terms of s 272

The court must also follow and record the procedure on sentence as provided by subss (4) and (5). This record is what the reviewing judge will use to determine whether or not the sentence is in accordance with real and substantial justice. Failure to canvass special circumstances is a fatal irregularity as a court cannot impose a mandatory sentence without first complying with that procedure. The provisions of s 3(3) of the Gold Trade Act [Chapter 21:03] and s 368(4) of the Mines and Minerals Act [Chapter 21:05] are couched in peremptory terms which makes failure to record or canvass special circumstances a fatal irregularity.

Justice cannot be seen to have been done if a judicial officer pronounces his judgment without giving reasons as to how he came to that conclusion. A judgment in the mind of a judicial officer cannot satisfy a litigant. It does not enable a reviewing judge to determine whether or not real and substantial justice was done. Section 70 of the Constitution entitles any person who has been tried for an offence, on payment of a reasonable fee prescribed by law, to be given a copy of the record of the proceedings within a reasonable time after judgment is delivered in the trial. The right to be given the record of proceedings includes the right to be given the court's judgment. The timing of the enforcement of the right to be given the record of proceedings after the delivery of judgment reinforces the importance of giving reasons for judgment.

Failure to give reasons for sentence is a misdirection which warrants interference by the reviewing judge. However, such interference must be carefully considered as the sentence might be appropriate in spite of the magistrate's failure to give reasons for sentence. In some cases it may be necessary to refer the case back to the trial magistrate for him to give reasons for sentence. This must not be taken as an encouragement to magistrates not to give reasons for sentence. Failure to give reasons for sentence is not just a misdirection, it is a deliberately inefficient and negligent performance of duty which judges may refer to the Chief Magistrate's office for disciplinary action to be taken. Sentences above 12 months can only be justified by the circumstances of each case, which must be stated in the reasons for sentences for that case. It will therefore not be acceptable for a judicial officer to not give reasons for sentence on the basis that the reasons for sentence are obvious. Even if they seem obvious to him, they may not be obvious to the accused, society or the reviewing or appeal judges.