SECTION 7 – JUDGMENT PROCESS

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Deciding on verdict

After all the evidence has been led the judge must make up his or her mind as to whether the State has proved the case against X beyond reasonable doubt. This involves deciding whether all the essential ingredients of the crime have been proved on the version of the facts accepted by the court and whether any defences are available to X. If there is proof of all the essential elements of the crime and no defences are available on the facts, X will be found guilty.

 

The Commonwealth Magistrates Handbook advises magistrates to go through these steps before reaching a verdict:

 

1.   Consider what are the essential ingredients of the criminal offence which have to be proved by the State before there can be a conviction.

 

      What does the law require the prosecution to prove in respect of the crime charged?

      Does the law require proof of a mental element?

      Must the injuries be so serious as to constitute grievous bodily harm?

      Must X have known that the goods in question were stolen, etc?

 

2.   Consider what facts have been proved in the case.

 

      In deciding what the facts of the case are, only admissible facts must be taken into account. The evidence on both sides must be considered as elucidated in cross-examination. A decision must be made regarding disputed facts. In respect of all competing or contradictory versions of facts the court must decide which version of the facts should be accepted as being the most credible. Remember that minor discrepancies in the testimony of a witness or minor contradictions between witnesses for the State or the defence will not automatically make this testimony unworthy of belief. The question will be whether the testimony appears to be substantially true.

 

3.   Decide which of these facts are relevant.

 

      Facts which are not relevant in deciding whether each of the essential elements of the crime has been proved can then be disregarded.

 

4.   Apply the law to the facts and decide whether all the essential ingredients are satisfied on the basis of the proved facts.

 

      Bearing in mind that the onus is upon the State to prove its case beyond reasonable doubt, the court will proceed to apply the relevant law to the facts and decide whether all the vital ingredients of the crime have been proved. If any have not been proved, X must be found not guilty.

 

There is another suggested framework in this Commonwealth book which is similar to the first. Under this the judge is advised to go though these stages:

 

1.   Consider the charge, noting its exact wording.

 

2.   Decide what are the essential elements of the offence which have to be proved. (Bear in mind any case law explaining the elements of statutory and common law crimes).

 

3.   Consider what facts of the case are relevant to these elements.

 

4.   Decide which of these facts are in issue, and which are admitted.

 

5.   Ascertain what evidence tends to prove or disprove each of the facts in issue. In doing this:

 

a)   start with what is legally presumed or assumed, what is agreed, admitted or uncontested, and work towards what is contested;

 

b)   exclude all evidence which is legally inadmissible such as inadmissible hearsay;

 

c)   evaluate each item of evidence in the light of credibility and consistency.

 

      (Inexperienced magistrates sometimes acquit accused where there is a conflict in evidence between State and defence witnesses, either because they lack the ability to resolve the conflict or because they wrongly believe that the mere existence of the conflict justifies an acquittal. Obviously, the fact of conflicting defence and State evidence is not a proper basis for acquittal; the evidence must be assessed to see which version of the facts should be accepted.)

 

6.   Consider what defences are available to X on the facts, and the requirements for these defences and decide whether these defences have been disproved or proved, depending upon whom the onus lies in respect of the defences.

 

7.   Consider whether each element of the offence has been proved to your satisfaction and whether the guilt of X has therefore been proved beyond reasonable doubt and is there no validly established defence.

 

      If yes, convict.

 

      If no, acquit.

 

Logical and systematic framework for judgments

 

A good way to structure judgments is to use headings to deal systematically with all the essential components of judgments. But even if headings are not used, it is useful to have some sort of check list of components and in what sequence they should be covered.

 

Trial cases

 

  1. Charge  

Set out charge and particulars of charge.  

 

      2.   Essential elements of crime

Note the essential elements of crime charged.

Decide what facts in the case are relevant to these elements.

(Often only one element in dispute – e.g. did A intend to kill or did he or she kill in self-defence and therefore did he or she act lawfully.)

 

    3.   Decide which facts are admitted

Set out the admitted facts which are salient for the decision.

 

  1. Evaluate evidence regarding facts in dispute

Summarise evidence presented by prosecution and defence on disputed facts and make findings of fact on which versions of the evidence the court is accepting and why (credibility, consistency etc). There is no need to recite every single piece of evidence produced on both sides. Concentrate on evidence which is material to the facts in dispute relating to the vital legal issues.

 

  1. Decide whether proof of guilt

Decide on the basis of findings of fact and inferences to be drawn from facts whether State has proved commission of the crime charged beyond reasonable doubt i.e. all its essential elements.

Every single fact does not have to be proved beyond reasonable doubt but facts establishing that the essential elements are satisfied must be proved.

Possible defences must be considered if the evidence suggests that they may apply even if they are not specifically pleaded. The onus is on State to disprove such defences except insanity.

 

  1. Sentence

If guilty, set out factors accepted in mitigation and in aggravation and then decide upon appropriate punishment for offender. Sentence must be an informed process based on adequate information.

 

Good technique

Dube 1997 (1) ZLR 229 (H) In this murder case the judgment was set out systematically using headings.

 

Bad technique

An ex-judge used to set out in exhaustive detail the prosecution and defence cases, quoting verbatim the state and defence outlines and reciting in detail the testimony given by every single witness. Without making any findings of fact regarding contradictory evidence, the judge would simply proceed to verdict. In other words, he or she would not decide which of two competing and contradictory versions of facts he or she was accepting. There was therefore no way of determining what facts he or she had used to arrive at his or her verdict.

 

Appeal against conviction

 

1.   Crime of which convicted  

Set out crime of which A was convicted and its essential elements.

      2.  Grounds for appeal

Set out the grounds for appeal and summarise the arguments for and against the appeal.

      3.  Whether sound basis for conviction  

 Analyse basis upon which trial court convicted A.

         a) Were the findings of fact consistent with evidence? (but the Appeal Court will not             normally

             interfere with the trial court’s findings of fact);

        b)  Were correct inferences drawn from the facts?

        c)  Did the court apply the correct law to the facts?

        d)  Did the trial court correctly apply the law to the facts?

        e)  Did the State discharge the onus of proving the essential elements of the crime beyond

             reasonable doubt?

Making findings of fact

 

In some criminal cases there is no dispute as to the facts. If X pleads guilty the court must satisfy itself that X is agreeing to the material facts of the State case. Having done so it convicts him or her on the basis of the State case as admitted by X.

 

Even where X pleads not guilty, he or she will sometimes not dispute the facts contained in the State case. He or she may agree that these are the correct facts but maintain that on these facts he or she has some defence to the charge. The State and the defence will sometimes put forward an agreed statement of facts.

 

The difficult cases from the standpoint of arriving at a judgment are those in which the facts are in dispute. This difficulty is most pronounced in a complex case where many witnesses have testified. Where the State and the defence version of the facts differ, the court has to decide which version of the facts it believes. Sometimes, and very commonly in assault cases or traffic cases, neither X nor the complainant is necessarily telling the whole truth. So it is not a question of “which party do I believe?” but “even if basically I believe the complainant, is it safe to accept everything he or she says?”

 

The court must decide what the true facts are before it can apply the law to the facts in order to arrive at a decision as to the guilt or innocence of X.

 

There are two ways in which the court can make its findings as to what the true facts were.

 

1.   The first technique, which is commonly used, consists of these stages:

a)   The court first summarises the State evidence;

b)   It then summarises the defence evidence;

c)   It then identifies contradictions between the State and defence versions of the facts, analyses the relative strengths and weaknesses of the evidence presented and decides what version of the facts it accepts.

 

2.   The second technique consists of going chronologically through the course of events and making findings of fact regarding each stage of the events. Under this technique, the court will not summarise the evidence on both sides. It will simply start at the beginning of the course of events and move through those events to the final event.

 

      In an assault case, for example, it will start with the events leading up to the incident, move on to the events at the time the complainant was injured and then move to what happened after the complainant was injured.

 

      As the court examines each stage of the course of events, it will carefully note what evidence there was on each event. It will note which witnesses testified on a particular event. In relation to each event:

 

  • If there were contradictory versions of what happened at a particular stage from the State and the defence, the court will have to evaluate the strengths and weaknesses of those competing versions and decide which version is to be believed and why;

 

  • If there was only State evidence on that event, the court will decide whether the evidence is credible and worthy of belief. It will then accept or reject that evidence.

 

The major advantage of the second technique is that the evidence is examined in logical sequence and the court systematically builds up a picture of what the true facts were. The first technique, on the other hand, has the disadvantage that the evidence may end up being dealt with in a rather haphazard and unsystematic way.

 

All too often a judgment reads like this:

 

      “State Witness A said this …

      State Witness B said this …

      State Witness C said this …

      X said this …

      The state witnesses gave their evidence well. X gave a very poor performance. Accordingly I find X guilty as charged.”

 

This sort of judgment contains absolutely no reasoning, no assessment of probabilities, no consideration whether the proved facts establish the commission of the offence charged and no analysis as to what facts were proved. Yet a remarkably high percentage of magistrates court judgments follow this pattern.

 

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 judge shows that his or her decision is a reasoned one. He or she gives proof that he or she 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.

 

Without reasons for judgment it is impossible to decide on appeal whether X 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 or she considered and give reasons for his or her 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 for the appeal court to be satisfied that the convictions were warranted from the record. In S v Maimba HH-293-14 the court pointed out that 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. The need for this is clear. The trial court cannot just make arbitrary decisions based on mere caprice, whim or casting of lots. A clear thought process, based on evidence adduced, should be evident. A judgment must be reasoned and the reasons for reaching a verdict must not only be stated but clear. Failure to give reasons for judgment is a gross irregularity. What is required is a complete and meaningful judgment touching all material evidence led during the trial. Magistrates should always bear in mind that in criminal trials the giving of reasons for conviction is a very important part of the trial, the purpose of which is to avoid creating the impression that the decision is arbitrary or capricious. For a magistrate not to record what he considered amounts to gross irregularity, which will usually result in a conviction being set aside on appeal or review, although the conviction may still be upheld if the evidence on record supports it. It would be disingenuous for a trial magistrate, when asked by a reviewing judge to provide detailed reasons for the conviction, to suggest that he had been asked to manufacture another judgment or that he could not comply because he was functus officio. The purpose for criminal review is to assess if proceedings are in accordance with real and substantial justice. The judge cannot properly discharge that function where meaningless judgments, devoid of any analysis or assessment of evidence on record, are routinely conveyed to judges who are then expected not to only read the evidence on record but to analyse it as well.

 

In the absence of reasons, the review court will have difficulty in deciding whether the proceedings were in accordance with real and 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 X was proved beyond reasonable doubt.

 

The contents of a judgment were dealt with in Ncube & Ors HB-61-03. The judgment should 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 reasons for its decision. For a magistrate not to record what he or she considered amounts to a gross irregularity, which will usually result in a conviction being set aside on appeal or review, although the conviction may still be upheld if the evidence on record supports it.

 

Public Announcement of Judgment

 

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

 

Alternative Charges

 

Where alternative charges have been brought against an accused and the evidence establishes that the two or more alternative charges have been committed, the judge is at liberty to convict X of the most appropriate charge, which will usually be the most serious charge levelled against him: Mtandwa HH-233-87.

 

Competent verdicts

 

The 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]

 

Section 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.

 

Alteration of judgment

 

Once a judicial officer has made a written record of court proceedings, that record constitutes the exclusive memorial of the proceedings. Judicial officers, save in exceptional circumstances, are strictly bound by the written record made during the course of proceedings. They may not subsequently supplement, amend or vary the record. Once the proceedings are recorded the record speaks for itself. No one can speak on its behalf, including the author. The record should be left to speak for itself at all material times without interference or adulteration, although patent errors may be corrected or rectified: Muendawoga HH-10-04.

 

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. But it is not every mistake which can be corrected under this provision. There must have been a genuine mistake in delivering the judgment either in the sense that the judge said something different from what he or she intended to say or that the judge did something in his or her judgment which was legally incompetent. For example, a judgment may be corrected if the judge intended to acquit X and by mistake gave a judgment convicting him or her. 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 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 the 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. The court held that a magistrate is not entitled to alter either his or her verdict or his or her sentence after is has been pronounced. The only exception is provided for in s 201(2), 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 the present case, the sentence was not delivered by mistake: it was deliberately imposed.

 

Change of plea after verdict but before sentence

 

An accused may sometimes apply to withdraw his or her plea of guilty after verdict or an application for change of plea may be made during an address from the bar.

 

Where an accused person, after verdict, seeks to withdraw his or her unequivocal plea of guilty, he or she is required to show, on a balance of probabilities, that the plea was not voluntarily and understandingly or correctly made: Nyajena 1991 (1) ZLR 175 (S).

 

There is no onus on X to show anything on a balance of probabilities. He or she must simply offer a reasonable explanation for having pleaded guilty. Unless the court is convinced beyond reasonable doubt that the explanation is not merely improbable but positively false, X must be allowed to change his or her plea. See Matare 1993 (2) ZLR 88 (S). In the Matare case, X, who was not legally represented at this stage, had pleaded guilty to four counts of fraud. The magistrate had questioned X to make sure that the essential elements of the crime were present. The proceedings were adjourned for a week pending sentence. When the proceedings resumed, the legal practitioner who was now appearing for X, applied for the pleas of guilty to be altered to not guilty. The grounds upon which this application was made were that X had pleaded guilty as a result of assaults and intimidation and that in any event he was innocent of the offences. The magistrate held a trial within a trial to determine whether X had discharged the burden of proving his or her allegation. The magistrate thus placed the onus on X to prove his  allegations. On appeal, the majority of the court held that the magistrate was wrong in placing the onus on X to prove his allegations. Once X offers an explanation that is not false beyond reasonable doubt, the change of plea must be allowed. The magistrate found that X’s explanation was improbable but he did not reject it as false. In the light of this, the magistrate should have allowed the change of plea. [The Matare case overruled the earlier cases of Maseko 1986 (2) ZLR 52 (S) and Nyajena 1991 (1) ZLR 175 (S).]

 

Where X seeks to withdraw his or her 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. Most applications for change of plea are based on allegations of undue influence from the police. X will usually maintain that the police threatened reprisals if, during the trial, he or she said anything about the treatment previously meted out to him or her by the police.

 

Where an allegation has been made of mistreatment of X by the police, the judge must hold a trial within a trial to determine the veracity of X’s allegations. If the judge finds that there is substance in the allegations, he or she will then change the plea: Maseko 1986 (2) ZLR 52 (S).

 

Where, however, a magistrate has convicted X and has then stopped the trial and the Attorney-General has directed that the matter be referred to the High Court for sentence, the magistrate is then functus officio and has no jurisdiction to hear an application by X to change his or her plea. Such an application can only be heard by the High Court. See Dube HB-65-93 and Kaiwona S-192-93.

 

Subsequent facts establishing innocence

 

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

 

If, after sentencing X, facts come to the attention of the magistrate which indicate that X 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 appraised 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.

 

The special verdict

 

In terms of s 29 of the Mental Health Act, where a person is found to be mentally disordered at the time of the offence, but sane at time of trial, the judicial officer will return a verdict of “not guilty because of insanity” and court may order that:

  • X be taken to institution or special institution for examination or treatment; or
  • if the judicial officer is satisfied that X is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged order his or her discharge and, where appropriate, his or her release from custody.

 

A petty case is one in which the judicial officer considers that the charge will not merit imprisonment without the option of a fine or a fine over level 3. In respect of such an offence, if the judicial officer finds that X was mentally disordered at time of offence but that he or she is sane at time of trial he or she must order

  • that X submit himself to examination and/or treatment at a specified institution, or
  • X’s spouse, guardian or close relative to apply for a civil detention order;

and may give such orders as may be appropriate for X’s release from custody or for the purpose

of such examination or treatment.

 

Courses open to court when returns special verdict

 

In K (A Juvenile) 2009 (2) ZLR 409 (H) the court held that the effect of s 229 of the Criminal Law Code is that if an accused person is proved to have committed the acts constituting the crime charged, but is also proved to have been suffering from a mental disorder or defect at the time of committing the offence, which mental disorder or defect constitutes a complete defence in terms of s 227 of the Code, he must in terms of s 29(2) of the Mental Health Act be found not guilty because of insanity, and be dealt with in terms of the options provided in subss (a) to (c) of that section. Section 229 of the Code applies to Part V of the Code, which comprises ss 226 to 229. However, s 29(2) of the Mental Health Act, which provides for a special verdict, refers to s 248 of the Code as being the section which provides for a mental disorder or defect being a complete defence. Section 248 actually provides for consent to medical treatment for none-therapeutic purposes. It is therefore not the provision intended by the legislature in s 29(2) of the Mental Health Act. The legislature clearly intended to refer to a section of the Code which provides for a mental disorder or defect being a complete defence, that section being s 227. A wrong section was referred to in s 29(2) of the Mental Health Act. As to whether the court can substitute s 248 of the Code with s 227 of the Code, in s 29(2) of the Mental Health Act, the court can do so, as the intention of the legislature is clear, and reference to s 248 was an obvious error. In interpreting a statute, the court must be guided by the clear intention of the legislature. When the words used by the legislature create an absurdity they can be modified to bring out the clear intention of the legislature.

 

Having returned a special verdict, the court has three options under s 29(2): (a) if the accused person still needs to be mentally examined or to be treated, he has to be returned to prison where he will be transferred to an institution or special institution for examination or treatment; (b) If the offence the accused person was facing and for which a special verdict has been returned was one for which the accused could not have been sentenced to imprisonment or a fine exceeding level three, then the accused can be released to be dealt with in terms of s 29(2)(b); (c) if the court is satisfied that the accused is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, it can order his discharge. If (a) is applicable, the condition of a prison does not justify the court's refusal to send to prison those the law says must be send there. The court has to proceed in terms of the correct option. From prison the accused must be transferred to a designated institution or special institution, as defined by s 2 of the Act.

 

Competent verdict

Where X is charged under common law and no alternative charge was preferred, it was held it is not competent to convict for statutory offence even where evidence showed that such an offence was committed: Moyo HH-43-03. The appellant was convicted of fraud. It was alleged that, with intent to defraud, she had misrepresented to the relevant vetting officers that she was a “war veteran”, as defined in the War Veterans Act [Chapter 11:15] and had participated in the war of liberation in Mozambique. She had claimed a gratuity and pension for such participation. She left out several relevant parts of the form that had to be completed but in spite of this was accepted by the vetting officers as having been a war veteran. Held: she should not have been convicted of fraud. She did not make the misrepresentation alleged. She merely presented certain information upon which the vetting officers pronounced her a war veteran. If any misrepresentation was made, it was made by the vetting officers. Although she could have been charged with a contravention of s 24(b) of the Act, the State had chosen not to do so, and a verdict of contravening that section could not be substituted, even though her counsel agreed that would have been the right course.