Remember that if X is not legally represented he is normally at a severe disadvantage by comparison with the person who has a lawyer to represent him. X is usually completely unfamiliar with the law and with the rules of evidence and procedure. The formal legal environment will often be completely alien to him and he may be totally overawed by the atmosphere.
As he is facing criminal charges he will be anxious and apprehensive and may not be able to compose himself and put forward a proper defence. He will often not know what he must do to defend himself and what is relevant in relation to the charges he is facing. This will particularly be the case when the charges are complex and involve technical elements. Whereas X may be out of his depth entirely, the State is represented by a trained prosecutor who is schooled in the law.
Bearing all this in mind, the magistrate is under an obligation to ensure that X receives a fair trial. The magistrate must assist X to the extent that is necessary to ensure that justice is done. This is not to say that the magistrate must assume the role of being X’s defence lawyer. He does not have to conduct the defence. He does, however, have to try as far as possible to ensure that points which are pertinent to the defence case do emerge.
It is a fundamental principle of our law that an accused person is entitled to a fair trial. The trial should be fair in substance as well as form. Where the accused is unrepresented, a trial magistrate has a duty to assist the accused, and to ensure that relevant evidence is called- Garande HH-46-02. See also C (a juvenile) 1997 (2) ZLR 395 (H).
What follows is a summary of the main obligations which magistrates have at different stages of criminal proceedings to safeguard X’s interests.
In Musindo 1997 (1) ZLR 395 (H) during the trial, the magistrate wrongly delegated his responsibilities of explaining X’s rights and other aspects of the trial to the court interpreter. The interpreter’s explanation was not recorded. The High Court pointed out that X’s right to maintain his silence has been severely eroded by legislation. This inroad into X’s age-old privilege can be justified only where there is the strictest of explanations to him of the extent of his rights and by the clearest of cautioning to him of the consequences of failure to give an explanation where an innocent person may be expected to do so. The only person who can ensure that X understands the choices open to him and the consequences of the choice he makes is the presiding officer. Where he abrogates his responsibility and leaves the function of explanation to an interpreter, a court on review cannot repose any confidence in that magistrate.
At confirmation of statement proceedings:
- Explain that if X admits he made the statement freely and voluntarily, the statement is admissible on production at his trial;
- If X says it was not freely and voluntarily made, find out on what basis he is saying this and explain that if he fails to mention relevant facts pertaining thereto this may lead to adverse inferences being drawn later.
- Whether or not X raised this, check that there is information which leads to a reasonable suspicion that he committed a crime and thus that there is a proper basis for a remand;
- Ensure that X is not kept on remand for unreasonably long periods;
- Where the State asks for a remand in custody, carefully probe the reasons for opposing bail in order to check that they have substance. (Do not automatically disallow bail whenever the State opposes bail.)
In line with the decision in Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S), the magistrate must refuse to place on remand accused persons who are in custody notwithstanding that they are facing petty charges.
It is also the magistrate’s duty to ensure that the trial takes place speedily otherwise he should query requests for remand whenever there appear to be a lull in proceedings: Tau 1997 (1) ZLR 93 (H)
The magistrate has the duty to explain to accused persons their rights and the proceedings. Zaranyika 1997 (1) ZLR 539 (H). This is moreso the case when X is unrepresented. If X is charged under a statute creating a presumption against X, it is the court’s duty to explain the effect of the presumption and record explanation its explanation: Ndlovu 1997 (2) ZLR 540 (S)
In trial proceedings:
- Ensure that the charge is properly and clearly formulated.
- Be extremely careful in checking a guilty plea before accepting it. There’s need for the magistrate to ensure that accused fully understands the elements of the offence with which he is charged: Ncube (2) 1989 (2) ZLR 232 (H). The magistrate must explain the essential elements of the offence with which X is being charged before X can be asked to plead: Machokoto 1996 (2) ZLR 190 (H) The elements of the offence must be explained carefully and the magistrate must clarify exactly what it is that is being admitted: Dube & Anor 1988 (2) ZLR 385 (S). The failure by the magistrate to explain the elements of the offence to X has the effect of rendering the decision irregular: Sibanda 1989 (2) ZLR 329 (S).
In Machokoto 1996 (2) ZLR 190 (H) the court said the essential elements must be explained in such a way as to inform X, if he or she is unrepresented, of the nature of the charge with sufficient clarity and in sufficient detail as will suggest to him, in his knowledge of the matter, whether he or she has a defence to offer. This does not imply that the magistrate should suggest a defence to X, but it should be borne in mind that for an unrepresented X the magistrate is the only source of independent assistance for undestanding what it is he or she is faced with. In the present case where X was charged with stock theft it should have been apparent that the defence of claim of right was in issue.
- If the case is complex and serious, consider whether X will only be able to receive a fair trial if he is legally represented. If this is the situation and X does not have the money to employ his own lawyer, certify that it is desirable in the interests of justice that he be assigned a lawyer paid for by the State. As to when the court should consider ordering legal representation to ensure a fair trial see Dube & Anor 1988 (2) ZLR 385 (S).
- Carefully explain that failure to mention salient features of a defence at the outset may lead to adverse inferences being drawn. Explain that this is because usually an innocent person would disclose these features right at the start to establish his innocence.
- Inform him of right to cross-examine State witnesses, explaining to him what cross-examination is for and the necessity for him to ensure that where he disagrees with their evidence his version must be put to them so that they can comment thereon. Make sure he understands that if he disagrees with any evidence they have given, he must challenge it in cross-examination. Failure to do so might be held against him.
- Where accused does not do so, ask pertinent questions of State witnesses so that lines of defence raised by X in his outline are explored with the State witnesses.
- At the close of State case, examine whether State made out prima facie case such as to require accused to be put to his defence. (Do this even where there is no application for discharge).
- Where X is put to his defence, explain to him that he has a right to call witnesses and to testify himself. (If wishes to call witnesses and they are not present, adjourn so that they can be called).
- If X calls witnesses assist him in extracting relevant information from those witnesses and prevent prosecutor from exceeding the bounds of proper cross-examination.
- If X testifies but then refuses to answer questions carefully explain that adverse inferences may be drawn from refusal to answer questions which innocent person would be expected to respond to.
- If X does not testify but questions are put to him which he refuses to answer, carefully explain to him that adverse inferences may be drawn as an innocent person would not refuse to answer such questions.
- X must be told of his right to sum up his case at the end of the trial.
In Musindo 1997 (1) ZLR 395 (H) the court criticized a magistrate who had made little inquiry into why there had been a delay of almost 7 years in bringing the matter to trial. It said that while X had not raised this issue, as he was undefended he was entitled to look to the magistrate to ensure that his rights were not infringed by the machinery of the State. In this case, the magistrate’s inquiry and the prosecutor’s explanation were brief and inadequate. A prima facie breach of X’s constitutional rights was left unexplained and constituted an irregularity.
A magistrate must always be alive to the impropriety of allowing the prosecutor to ask for multiple admissions: Makhado 1999 (1) ZLR 467 (H).
It is also undesirable for the magistrate to engage in prolonged questioning of X when he or she is testifying just as it is undesirable to subject a witness to prolonged questioning: Magoge 1988 (1) ZLR 163 (S).
If X is found guilty, inform him of his right to call evidence in mitigation of sentence and to address in mitigation. If he does not know what sorts of factors are salient in regard to sentence, tell him what sort of things may constitute mitigation.
As regards mandatory sentences, it is the court’s duty to advise X of the onus on him to adduce special reasons to avoid a mandatory sentence: Rudolph 1990 (1) ZLR 45 (S)
The duties of the magistrate to safeguard the rights of undefended accused are set out above. It is the duty of the magistrate to explain in a simple and understandable way what rights the undefended accused has at the different stages of a criminal case. What follows are some suggestions as to how these explanations can be formulated so as to ensure that X understands what it is that he or she must do during criminal proceedings.
The magistrate must first read out the brief allegations against him. These will be found in the preamble to the warned and cautioned statement.
Regarding the statement itself the magistrate should say these things to X:
- If you admit that you made this statement freely and voluntarily, the statement will be confirmed by me and it can be produced in evidence at your trial.
- You now have a chance to tell me about how this statement came to be made. You must tell me if you made this statement and if you made it freely and voluntarily. You must tell me if the police did or said anything to you to force, pressure, induce or trick you into making the statement? If you fail to mention relevant details about how you were forced or induced to make this statement and you only tell the court about these things when you are on trial, the court may end up disbelieving these details.
If accused says the statement was not made by him but was concocted by the police and he was then forced to sign it:
You have told me that the police forced, tricked or induced you to sign a statement which was concocted by the police and not made by you. What exactly did the police do to force or induce you to sign this statement? Who did these things to you and when were they done? Do you know the names and ranks of the police officers concerned or can you describe them to me if you do not know their names.
If accused says he made the statement but it was not made freely and voluntarily:
You have told me that you did not make this statement freely and voluntarily. You must tell me why you are saying this. You must tell me exactly what happened which caused you to make a statement when you did not want to do so. Who did these things to you and when were these things done? Do you know the names and ranks of the police officers concerned or can you describe them to me if you do not know their names.
If X alleges that he was assaulted:
What injuries did you sustain as a result of these alleged assaults? Do you still have any injuries or marks on your body which show that these assaults were in fact committed? If yes, please show me these injuries.
If the magistrate intends to have a medical examination carried out on X, the magistrate should tell X what is going to happen and why.
When X pleads guilty:
You have pleaded guilty to the charge. I will now ask you a series of questions so that I can satisfy myself that you are properly admitting to this charge.
The magistrate must then ask a series of questions to satisfy himself that X is admitting to all the essential elements of the crime and to the material facts upon which the charge is based and that he has no defence to this charge. In particular, questions must be asked to clarify points such as the intent in cases of assault with intent to do grievous bodily harm and the nature of possession in rhino horns and ivory cases. The question “Why did you do it?” will often reveal a defence such as provocation, intoxication or self-defence.
It is particularly dangerous for the magistrate to accept a guilty plea in offences involving possession as possession is a technical term: Zvinyenge & Ors 1987 (2) ZLR 42 (S). The procedure to be followed under such circumstances is set out in Bizwick 1987 (2) ZLR 83 (S).
- You have pleaded not guilty to the charge. You have heard the summary of the State case against you. You now have the opportunity to outline your defence and state the basis upon which you deny these allegations. When you make this statement you must refer to every important fact upon which you rely for your defence. If you fail to mention an important fact, the court may hold this failure against you.
- What I need from you at this stage is only a summary of your defence. You should tell me what your defence is to the charge/charges (why you say you are not guilty) and the main facts upon which this defence is based. Later in the proceedings after the State has produced its evidence against you will be able to present your own evidence in detail.
Note. Although X is supposed only to outline his defence at this stage, if X wants to give full details of his defence rather than simply a summary, he should be allowed by the magistrate to do so. He may not be able to understand the difference between a summary and a full presentation of his defence at the outset. If he wishes to describe his defence in detail it is in the interests of justice that he be allowed to do so.
In the same vein it is vitally important that in relation to unrepresented accused person’s the court explain to them that the onus rests upon them to raise and prove a defence to a statutory offence if that be the case otherwise the proceedings are rendered irregular: Hove 1992 (1) ZLR 70 (S)
Before any extra-curial statement allegedly made by X to the police or to anyone in authority over him, such as his employer, is produced in evidence, the magistrate must ask X:
Did you make this statement and did you make it freely and voluntarily and without undue influence being used?
If he says “No” a further enquiry and possibly a trial within a trial will have to follow.
You have a right to call witnesses to testify on your behalf. Do you have any witnesses which you want to call?
In Musindo 1997 (1) ZLR 395 (H) the court criticized a magistrate who when the accused indicated that he wanted to call a person who at been summoned as a State witness but not called by the State, the magistrate acted in so hectoring and minatory a fashion as to result in the accused failing to call the witness.
The case of Chikukutu 1996 (1) ZLR 702 (S) lays down the correct method of getting accused persons to give evidence in chief.
- Listen carefully to the evidence of the State witnesses. After the prosecutor has asked them questions, you will be given the opportunity to ask them questions. If a witness says anything which you think is untrue or with which you disagree you must ask the witness questions about these things. If you do not ask questions about the things which you disagree with the court may assume that you do not disagree with these things.
- If you think that the witness knows things favourable to your defence but which he has not told the court about, you should also ask him questions to draw out these things. [It sometimes helps to offer X a pen and paper to make notes on the points he wants to challenge.]
After X has finished cross-examining the witness, the magistrate should draw X’s attention to “damaging” aspects which have not been canvassed by him and invite him to ask questions on those aspects.
The magistrate should also put to State witnesses any points contained in X’s initial outline of his defence which he has not raised during cross-examination.
Right to produce evidence:
You have heard the evidence against you from the State witnesses. You now have the opportunity to produce evidence in your defence. You yourself may give evidence. If you wish to testify yourself, you must take the oath and swear that that you will tell the truth. If you testify the prosecutor will be able to ask you questions about what you have said. If you decide not to give evidence on oath yourself, the prosecutor and the court may still put questions to you. If you refuse to answer these questions the court may hold this failure against you. You may also call any witnesses whom you think will support your defence and help to disprove the State case.
If X wishes to give evidence himself as well as calling witnesses the magistrate should state:
You should give your own evidence first before you call your witnesses. If you have any reason for wanting your witnesses to give evidence before you testify, you should tell me what those reasons are and if I think that they are good reasons I will permit you to call your witnesses first before you testify. [In terms of the proviso to s 188(5) CPEA X must normally give his testimony before he calls his witnesses.]
Accused persons should normally give evidence from the witness box and not from the dock. Sometimes, however, accused persons do not want to give evidence from the witness box, possibly because they think that this is “the enemy camp”. In such cases magistrates should not insist that they take the witness stand. They can give sworn evidence from the dock.
In a proper case X should be allowed to sit while giving evidence.
When first defence witness is called tell X:
You can put questions to your defence witnesses to draw out their evidence but you must not put questions to them which suggest the answers they are to give. You must let them tell their own stories and you must not put words in their mouths.
Re-examination of defence witnesses:
You can now ask the witness further questions but you may only now ask him questions on new matters which have come up in response to the questioning of the witness by the prosecutor. You must not question him about things which you questioned him about previously unless new matters have come up on these points in response to questions from the prosecutor.
You have refused to answer the questions which have been put to you. I must tell you that this refusal may lead the court to form an unfavourable impression and to hold this refusal against you because the allegations made by the State against you, through the its witnesses, will then be uncontradicted and unexplained by you.
You now have the right to sum up your case. You should highlight the important points in your defence case and point out what you consider to be the weaknesses of the State case and any serious contradictions in the evidence of the State witnesses.
I have already found you guilty of the crime of … Before I impose sentence upon you, you have a chance to give evidence in mitigation of sentence. You must tell me anything about this case which you think serves to lessen your moral blameworthiness. You should also tell me anything about your personal circumstances at present which you think may persuade me to impose a more lenient sentence.
Guilty plea: Where X has pleaded guilty, the court must investigate the motive of X in the commission of the crime to find out whether the motive was something like dire economic need which would amount to a mitigating factor.
Not guilty plea: Where X had pleaded not guilty, any factors of a mitigatory nature which have emerged during the trial must be taken into account by the court even if X does not raise them at the time of mitigation.
- Are you married? How many children do you have and how old are they?
- What do you pay each month for food, accommodation and travel and what other expenses do you have?
Where the magistrate is contemplating imposing a fine, he should ask these sorts of question:
- Are you employed and what is your take-home pay?
- You have told me that you are not in regular employment. Do you have any source of income at all? [i.e. does he work in the informal sector?] What is the amount of your average weekly earnings?
- Do you have any savings? How much? [This question should be asked whether or not X is employed.]
- You have told me you are unemployed and have no savings, Do you have any possessions which you could sell to raise money? Do you have any friends or relatives who would be prepared to lend you money to pay a fine which I might impose?
- Do you have money on your person to pay a fine?
- Can you pay a fine in weekly or monthly instalments and what amount of instalment can you pay? (I cannot give you more than 12 months to pay the full amount of the fine I impose.)
Where X’s actions have caused damage or pecuniary loss
The magistrate should ask X these sorts of questions:
- (If this has not been canvassed in evidence): Do you agree that X suffered damage or loss?
- It is in your interests that you make good the loss caused by the offence which you committed. If you make restitution or pay compensation the court may take this into account in your favour when it imposes sentence upon you.
- Do you wish to make good the damage or the loss?
- How will you do this and when?
In cases of malicious injury to property involving the destruction of a hut:
• Are you willing to rebuild the hut and, if you are, over what period of time will you do this?