MUTSINZE v ATTORNEY-GENERAL 2014 (2) ZLR 443 (CC)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — right to trial within a reasonable time (s 69) — permanent stay of proceedings — limited circumstances in which may be granted — trial mostly completed

except for passing of sentence — lengthy delay caused by disappearance of record and other documents — reconstruction of record possible — stay refused

Headnote

The applicant sought a permanent stay of the criminal proceedings against him and an order for his release from custody. He alleged that the failure by the State to complete the proceedings constituted a breach of his rights under ss 50 and 69 of the 2013 Constitution.

He had originally been arrested in August 1998 on allegations of murder and armed robbery. The trial had commenced in the High Court in September 2001 and the defence case was closed in 2003 or 2004. The record of the proceedings had thereafter disappeared in unclear circumstances. When the matter came before the Constitutional Court, the court ordered that Registrar of the High Court to file an affidavit, within 30 days, to clarify the status of the record and, if lost, the efforts made to reconstruct the record. The court also ordered the trial judge to furnish, through affidavit, the reasons for the delay in the finalisation of the matter.

The Acting Registrar of the High Court advised that the record as transcribed and the judge's note books had gone missing. The cassette tapes used to record the proceedings had been erased after the transcription and re-used in other cases. Whilst a number of documents had been availed to assist in the reconstruction, the record on the evidence led was not available. The trial judge stated that after the closure of the defence case and the hearing of closing arguments, he convicted the applicant on two counts of murder and one of robbery. One of the three accused persons had passed on before judgment. He acquitted the remaining accused. After hearing submissions on the question of extenuation, he made a finding that there were no such circumstances as both counts of murder had been committed in cold blood and in the course of a planned robbery. The applicant denied that he had been convicted; he said that nothing further had happened since the close of the defence case. However, the trial judge, the trial prosecutor, assessor and transcriber all deposed to the fact that a verdict of guilty had been returned. The only documents eventually available were the prosecutor's notebooks, one of which also disappeared after she made them available to be transcribed. Based on the available documents and the affidavits, the Constitutional Court concluded that the trial had indeed proceeded to the stage where the trial court made a finding that there were no extenuating circumstances. For some reason, which remained unclear, the actual sentence of death (which requires certain formalities) had not been passed. The court also concluded that notwithstanding the various difficulties that had been encountered in trying to reconstruct the record, reconstruction was possible. Moreover, the circumstances surrounding the commission of the offences were not seriously in dispute.

The applicant complained to at least three High Court judges about the delay after the year 2008. The first complaint was made to a judge during a prison visit. The other two were made during bail applications in the High Court. All were of the opinion that the issue of the delay was better dealt with by the trial judge. The referral of the complaint by these judges to the trial judge did not produce any results. Thereafter it was discovered that the transcript of the record of the proceedings as well as the judge's notes had both mysteriously gone missing. The State urged that the interests of justice would be seriously prejudiced were the applicant to be set free, particularly in light of the fact that the trial judge had indicated that he was in a position to reconstruct the remaining portion of the proceedings. The State further submitted that the totality of the facts suggested that someone had gone to great lengths to ensure that the record was destroyed and that the only person who stood to benefit from the disappearance of the record was the applicant. To release him in these circumstances would set a dangerous precedent as it would encourage persons undergoing trial to arrange for the disappearance of the record of proceedings in the belief that they would ultimately get a permanent stay of the proceedings.

Held, that the factors to be considered in an application of this nature are settled. These are (a) the length of the delay (b) the reasons given by the State for such delay (c) whether the applicant asserted his rights to a speedy trial and (d) the prejudice to the accused caused by the delay. In order to determine whether the delay is reasonable or not, a court must endeavour to strike a balance between these factors. In general, no one factor can on its own justify an inference that the delay is unreasonable. The test involves balancing the conduct of both the State and the accused on a scale.

Held, further, that here the delay was certainly inordinate and both parties to this application agreed that the delay was unprecedented and certainly presumptively prejudicial. While some of the circumstances were not clear, the disappearance of the record largely contributed to the delay.

Held, further, that whilst, as a general proposition, a person who seeks a permanent stay of the criminal proceedings in which he is an accused, must assert his rights and that failure to do so will make it difficult for him to prove that he was denied a speedy trial, in this case that the applicant was not in a position to do more than complain to the High Court judges. His lawyer, representing him pro Deo, never demanded that this matter be determined. After the legal practitioner left the country, no other legal practitioner from the firm pursued the matter. The failure by the applicant to assert his rights in these circumstances was not one that should weigh heavily against him.

Held, further, that the question of prejudice is to be assessed in the light of the interests of the applicant which the speedy trial right was designed to protect. Three such interests have been identified: (a) to prevent oppressive pre-trial incarceration; (b) to minimise anxiety and concern on the part of the accused; and (c) to limit the possibility that the defence will be impaired. Only (b) applied here. It could not be doubted that the applicant must have suffered considerable anxiety for the duration of his incarceration. A court may quite properly infer or presume prejudice, where such is not proven. Held, further, that whilst each case must be decided on its merits, the grant of a permanent stay is an exceptional remedy. The test is whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The power to stay proceedings permanently may be exercised where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual, making it unacceptable for justice to embark on its course. There must be prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied; but in the absence of prejudice of that sort, there is normally no justification for granting a stay. The yardstick is not simply fairness to the particular accused or whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. The focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court. Held, further, that there will also always be the interests of society to be taken into account in any "balancing" of the factors to be considered. All crime disturbs the community and serious crime alarms the community. All members of the community are thus entitled to see that the justice system works fairly, effectively and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from acts of crime cannot be assuaged until the trial has taken place. The trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealt with according to the law.

Held, further, that in considering whether or not a permanent stay is warranted, the court had to take note that the applicant was convicted of murder committed with actual intent in the course of an armed robbery and that no extenuating circumstances were found to exist; that all that remained was the pronouncement of sentence; that the record of the proceedings up to the close of the defence case had, fortuitously, been reconstructed using note books provided by the trial prosecutor; that the disappearance of the record largely contributed to the delay; that the circumstances surrounding the commission of the offence were largely admitted by the applicant during the trial; and finally that the trial judge was in a position to reconstruct the missing part of the record.

Held, further, that the lengthy delay experienced in the completion of this case could not in these circumstances justify the grant of a permanent stay of the proceedings, particularly in light of the fact that such record of proceedings could be reconstructed. This was a proper case for the matter to be referred back to the trial court for the reconstruction of the missing part of the record and thereafter for sentence to be passed.