SECTION 8 – VERDICT

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Verdicts

 

The court will acquit X if it decides that he or she is not guilty.

 

If X is charged in the alternative, the court may acquit X on the main charge but find X guilty on the alternate charge. Where alternative charges have been brought against an accused and the evidence establishes that the two or more alternative charges have been committed, the judicial is at liberty to convict the accused of the most appropriate charge, which will usually be the most serious charge levelled against him: Mtandwa HH-233-87.

 

The court may also acquit X of the crime charged but find him or her guilty of a crime that is a competent verdict in the crime originally charged. Thus for instance it could acquit a person charged with murder but find him or her guilty instead of culpable homicide.

 

If the court finds that X was mentally disordered at the time he or she committed the act that led to the charge so as not to be responsible at law for his or her actions, the court will return the special verdict that X is not guilty by reason of insanity. In special verdict under Mental Health Act [Chapter 15:12]

A person suffering from temporary psychotic episode at the time of offence is entitled to a special verdict and, if no longer mentally disordered, to be released. In Machona HH-14-02 the medical evidence was that X, who was charged with attempted murder, had suffered a brief “reactive psychosis” or “psychotic episode” which was unlikely to recur. It was held that the appellant was mentally disordered at the time and should have been found not guilty by reason of insanity. Because he was no longer mentally disordered, he was entitled to be released from custody.

 

Competent verdicts

 

Criminal Law (Codification and Reform) Act Chapter XV deals with the issue of permissible verdicts (i.e. competent verdicts).

 

A person charged with a crime may be found guilty if the facts proved establish this of ¾

  • threatening, inciting, conspiring to commit or attempting to commit that crime or any other crime of which the person might be convicted on the charge;or
  • assisting a perpetrator of that crime or of any other crime of which the person might be convicted on the charge.

            [s 273]

 

If X is found not guilty of the crime charged, and the essential elements of the crime charged include the essential elements of some other crime, X may be found guilty of such other crime, if such are the facts proved. [s 274]

 

A person charged with an offence listed in the first column of the Fourth Schedule can be found guilty of any of the offences listed alongside that crime in the second column in the Fourth Schedule. [s 275]

 

A person charged with threatening, inciting, conspiring or assisting the perpetrator to commit an offence listed in the first column of the Fourth Schedule can be found guilty of any of the offences listed alongside that crime in the second column in the Fourth Schedule. [s 275]

 

276       Sentence imposable where person found guilty on competent verdict

Where a person charged with a crime is found guilty of another crime in terms of this Chapter, the sentence imposed upon that person shall not exceed the maximum sentence applicable to the crime of which he or she is convicted.

 

Section 207 CPEA provides that where a court finds that part but not all of the facts of an offence charged have been proved, it shall nevertheless convict the accused of that offence if the facts that are proved disclose all the essential elements of that offence.

 

Conviction of other charge without amendment of charge

 

A court cannot convict a person of a charge other than that with which she was charged without the charge first being amended. In Moyo 1994 (2) ZLR 24 (H) X had been charged with contravening s 2 of the Concealment of Birth Act. She was, however, convicted of infanticide without the charge being amended. The court ruled that the magistrate had misdirected himself. There was no evidence that the accused had killed the child. The accused should have been convicted of the crime with which she had been charged.

 

Failure to give reasons for judgment

 

Unless reasons are given for a judgment it is impossible to determine how the ultimate conclusion was reached and whether it was reached on a proper reasoned basis. Merely to state a conclusion, without giving reasons, creates the impression that the decision was an arbitrary one; it could have been reached on the basis of caprice or whim. By giving reasons the magistrate shows that his decision is a reasoned one. He gives proof that he has taken into account the evidence and arguments on both sides: Makombe & Ors HH-120-86.

 

Thus it has been repeatedly laid down that judgments must be reasoned and that the reasons for reaching the conclusion on verdict must be stated.

 

However, in the magistrates court, the Magistrates Court (Criminal) Rules RGN 871 of 1966 simply provide that "where appropriate" the magistrate presiding at the trial shall deliver a judgment giving reasons for conviction and stating shortly any special features which he has taken into account in assessing sentence. (Rule 1 of Order IV). It is further provided in Rule 2 of Order IV that where the sentence imposed exceeds twelve months’ imprisonment with hard labour, with or without the option of a fine, the judgment must be reduced to writing and shall become part of the record.

 

Without reasons for judgment it is impossible to decide on appeal whether the accused was properly convicted. In two appeal cases the Supreme Court stressed the need for reasons to be given. In Makawa & Anor 1991 (1) ZLR 142 (S) it stated that the trial magistrate must record what he considered and give reasons for his decision otherwise there will be a gross irregularity. In Marevesa  S-108-91 it said that the judgment must contain a brief summary of the facts found proved and the trial court's appraisal of the credibility of each witness, stating what evidence was accepted or rejected and giving its reasons for its decision. In both these cases the Supreme Court stated that if the judgment is inadequate, the appeal may have to be allowed as it may not be possible from that record for the appeal court to be satisfied that the convictions were warranted.

 

In the absence of reasons the review court will have difficulty in deciding whether the proceedings were in accordance with substantial justice. The absence of reasons will be an irregularity. However, it may not be a fatal irregularity and a conviction may still be upheld on review if the evidence on the record supports it: Rusero HH-151-86.

 

A full and comprehensive judgment will be more than just a recitation of the State and defence cases. It will include findings of fact, with comments on the credibility and demeanour of witnesses. It will include an analysis of the evidence and will deal with the probabilities. This will then lead up to the finding of whether the guilt of the accused was proved beyond reasonable doubt.

Public announcement of judgment

 

In terms of s 334(1) CPEA all judgments in criminal proceedings against persons aged 18 or above shall be pronounced in open court.

Alteration of judgment

 

Section 201(2) CPEA provides that if by mistake a wrong judgment was delivered, the judgment may be altered before or immediately after it is recorded. Not every mistake can be corrected under this provision. There must have been a genuine mistake in delivering the judgment, either in the sense that the magistrate said something different from what he intended to say or that he did something in his judgment which was legally incompetent. For example, a judgment may be corrected if the magistrate intended to acquit the accused and by mistake gave a judgment convicting him. It would seem that ambiguous and obscure aspects of a judgment may be clarified immediately after the judgment is recorded: Sikumbuzo 1967 (4) SA 602 (RA).

 

In Masundulwane HB-22-06 where in passing sentence on a charge of theft, a magistrate sentenced the accused to one month’s imprisonment, wholly suspended on appropriate conditions, plus a fine or in default a period of imprisonment. After sentence was passed the accused asked to magistrate to consider community service because he could not afford the fine, whereupon the magistrate purported to “convert” the fine to a period of community service. This he did by amending the sentence to delete the fine and impose a further 30 days’ imprisonment suspended on condition that the accused undertake community service.  It was held that the trial court does not have authority to pass two sentences for one offence. Section 358(2) CPEA does not enable the trial court to impose two sentences for one offence. The sentence for the offence remains one, which is either wholly or partially suspended on appropriate conditions. A magistrate is not entitled to alter either his verdict or his sentence after is has been pronounced. The only exception is provided for in s 201(2) CPEA, which allows the court to amend a wrong verdict or sentence delivered “by mistake”.  That implies a misunderstanding or an inadvertency resulting in an order not intended, or a wrong calculation. A verdict or sentence, however, much open to criticism, cannot be altered if it was deliberately given or imposed. The correction must be done immediately on the same day preferably before the magistrate leaves the bench. In casu, the sentence was not delivered by mistake: it was deliberately imposed.

 

Change of plea after verdict but before sentence

 

Where an accused applies to withdraw a plea of guilty after he has been convicted but before sentence is passed there is no longer a presumption of innocence. The onus is on the accused to show on a balance of probabilities that his plea was not made knowingly, voluntarily, or correctly. In some cases it may be possible to discharge this onus if the accused's legal representative makes a statement from the bar. In other cases, viva voce evidence by or on behalf of the accused may be necessary. In such cases the judicial officer should conduct the "trial within a trial" procedure, giving the accused and the State the opportunity to adduce evidence. Where an application is made to change the plea to not guilty because the accused now claims innocence, it is permissible for the court to have regard to his statements in order to decide his guilt or innocence: Haruperi 1984 (1) ZLR 258 (H).

 

Where the accused seeks to withdraw his plea at this stage, the court has the discretion to allow the withdrawal of the plea. This discretion will be exercised very sparingly and only in clear cases.

 

Sometimes a defence lawyer may have been engaged to represent the accused where he has already pleaded guilty and been found guilty but where sentence has not yet been delivered. In some of these cases the accused may wish to change his plea because the accused alleges that the police forced him to plead guilty because of threats or induced him to plead guilty by falsely informing that he would receive only a light fine if he pleaded guilty. In such cases the lawyer will have to apply for the plea of guilty to be changed to one of not guilty and, if the application is successful, the case would have to start again and the State would be put to the proof of its case. In Jackson HH-201-02 X, together with a colleague, stole a car in Chinhoyi. While driving it away, the accused lost control. His companion was killed; the vehicle was badly damaged. At his trial in a regional magistrates court, X pleaded guilty and was convicted. The matter was referred to the High Court for sentence. Before the hearing, X’s legal representative indicated that X wished to change his plea to one of not guilty. The reason given was threats by the police. The question was whether the High Court could remit the matter to the lower court for X to change his plea. It was held that the application to change the plea should be directed to the trial court. Although there is no onus on X – all he must do is offer a reasonable explanation for having pleaded guilty – less is required of him when he applies to the High Court for remittal to change his plea. All he must show is that he has an explanation which prima facie shows that he has a reasonable explanation for a change of plea to give to the trial court.

 

Subsequent facts establishing innocence

 

Occasionally, after the accused has been convicted but before sentence is imposed, evidence comes to light which proves conclusively that he did not commit the offence, such as that he was in prison when the offence was committed. The magistrate may discover a superior court decision which reveals conclusively that he misconstrued the law and wrongly convicted the accused. In such a situation the proceedings may be sent for review to the High Court before the case is completed, for it is clearly undesirable that an accused should be sentenced if inevitably the conviction will later be quashed.

 

If after sentencing the accused facts come to the attention of the magistrate which indicate that the accused did not commit the offence and the case has not yet been reviewed, the magistrate should ensure that the case is immediately reviewed by a judge and that the judge is apprised of these new facts. If it has already been reviewed and the proceedings have been confirmed, the new facts should immediately be brought to the attention of the High Court in order for the confirmation certificate to be withdrawn and the conviction to be quashed.

Retrieval of bail after acquittal

 

If the accused is acquitted, he is entitled to recover the bail which he paid to ensure that he stood trial on that charge.

 

Retrieval of bail after acquittal

 

The Attorney General may not use review proceedings to have an acquittal set aside. The
correct procedure according to Bassopo & Anor1993 (2) ZLR 374 (H) is for formal proceedings to be instituted and due notice thereof is given to the accused who were acquitted. For the court to consider

this matter without notice to the accused would be to breach the fundamental principles of natural justice. Where an accused is acquitted at the close of the state case, s 188(3a) CPEA allows the Prosecutor-General to appeal from a decision to acquit at the end of the State case, but that right is limited to seeking an authoritative pronouncement from the Supreme Court on a point of law, without in any way affecting finality of the lower court’s judgment. A similar right is provided by s 69(a) of the Magistrates Court Act and s 44(6) of the High Court of Zimbabwe Act, but this right does not cover verdicts given at the close of the State case and is also limited to appeals on points of law without affecting the finality of the judgment. See Attorney-General v Howman 1988 (2) ZLR 402 (S)