S v KONSON 2015 (2) ZLR 197 (C)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — right to fair trial (s 69(1)) — criminal trial — trial judge descending into arena — extent to which he did so violating accused's right to fair trial

Court — judicial officer — conduct of trial — manner in which judicial officer should conduct trial — extent to which judicial officer may question accused person in criminal trial

Criminal procedure — trial — conduct of — role of judicial officer — extent to which judicial officer may question accused person — if fairness of trial undermined, accused's constitutional right to fair trial may be violated

Headnote

The applicant was convicted of murder in the High Court and sentenced to death. In his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial, as guaranteed under s 69(1) of the Constitution, by the extent to which the trial judge had descended into the arena. It was alleged that the record of proceedings showed that the court was not impartial. It is argued that the questioning of the applicant by the trial judge was such that, because of its frequency, length, timing, form, tone and content, it was apparent that the trial judge was hostile to the applicant. The trial judge asked more questions of the applicant during cross-examination and re-examination than did the prosecutor.

Held, that the object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one, as his task is to see that justice is not only done, but that it is seen to be done. In this exercise, he should conduct himself in

such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a predisposition on the part of the judge. The judge should neither lead nor cross-examine a witness. He should so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused.

Held, further, that this case, the inescapable conclusion that emerged from the record was that the judge descended into the arena and as a consequence he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had prejudged the issues of the trial that was before him. In view of the stance assumed by the trial judge, the defence proffered on behalf of the applicant was not properly evaluated, thus further undermining the trial. His right to a fair hearing was clearly violated. The proceedings would be set aside and a trial de novo before another judge would be ordered.

Editor's note: at the re-trial, the applicant was convicted and sentenced to 25 years' imprisonment.

See S v Konson HB-18-16.

Cases cited:

S v Mangezi 1985 (1) ZLR 272 (S)

S v Rall 1982 (1) SA 828 (A)

S v Sigwala 1976 (4) SA 566 (A)

Legislation cited:

Constitution of Zimbabwe 2013, ss 69 & 175