State v Fadzai Kanyemba

### Preamble
1
HH 419-13
CRB 1867-13
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STATE

versus

FADZAI KANYEMBA

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 16 October 2013

Criminal Review

HUNGWE J:	The accused was charged and convicted under the Domestic Violence Act, [Cap 5:16] for a serious assault upon her husband with an axe. She had pleaded not guilty but notwithstanding her plea, she had been found guilty. And sentenced to 12 months imprisonment of which half was suspended for five years on appropriate conditions. The learned scrutinising Regional Magistrate before who the record of proceedings was placed noticed that after the accused had given her evidence and had been cross-examined, there is no indication as to whether or not the court asked her whether she intended to call any witnesses to her defence to testify on her behalf as is required of it in terms of s 198(6) of the Criminal Procedure and Evidence Act, [Cap 9:07]. He addressed a query to the learned trial magistrate on the issue. The learned trial magistrate indicated that although this was not indicated on the record, she had in fact enquired with the accused as to whether she intended to call any witnesses and had postponed the matter in order to accommodate her desire to call them. On the appointed day she had however failed to secure them and the matter proceeded without these.

Section 198(6) provides;

“(6) Subject to subsection (3), at the close of the case for the prosecution, the court shall –

ask the accused or, if he is legally represented, his legal representative, whether it is intended to adduce evidence for the defence and whether the accused intends himself to give evidence; and

if the accused is not legally represented, inform him of the provisions of the proviso to subsection (8) and of subsection (9) and of subsection (1) of section one hundred and ninety-nine.”

The learned scrutinising magistrate appears to be concerned that the trial magistrate failed to comply with the procedural aspect of the trial which obliged her to help an unrepresented accused in securing and adducing evidence in his or her defence. That explanation, which in practice, is accompanied by the assurance to an accused person that the accused is entitled to the court’s assistance in securing his or her witnesses is given, after the closure of the case for the prosecution if the accused is not discharged and at the beginning of the case for the defence: s188 and s189 of the Criminal Procedure & Evidence Act. That explanation or inquiry is not conducted after an accused who is not legally represented has already given her evidence as the learned Regional Magistrate seems to suggest. However in any event, the court must at the point an accused is asked to furnish his or her defence obliged to explain these fair trial rights and also inform him or her that he or she will not be allowed to call his or her witnesses until after he or she has given evidence or has been questioned by the prosecutor or the court. Even if he chooses not to give evidence, he is liable to be questioned by the prosecutor and the court (s 198(6)).

Section 198(6) which the learned Regional Magistrate believes was not complied with is of no application after the accused has given her evidence and has been cross-examined by both the prosecutor and the court. At that point the warning against adverse inferences being drawn for failure or refusal to answer questions would have been given. I believe that what the learned Regional Magistrate had in mind was the failure to ensure that where there was a possibility of there being available and eligible witnesses for the defence, then at that stage the court would have ensured that the accused was again reminded of her right to a ssistance to secure their attendance in fulfilment of the fair trial rights as already explained at the beginning of the case for the defence. The court, at the outset of the defence case, must explain to an unrepresented accused that if he/she gives evidence or is questioned and refuses to answer a question, he/she will be asked why he/she refuses to answer, and if he persists in his/her refusal to answer a question, the court may, unless it is satisfied that he/she has just cause for his/her persistence, draw such inferences from his/her refusal as appear proper and that the refusal may be treated as evidence corroborating any other evidence given against the accused: s 199(1). This procedure is mandatory as the courts have held that failure to ask the accused whether he/she wishes to give evidence is an irregularity necessitating the setting aside of a conviction. R v MacDconald 1964 RLR 124 (A). The fact that the accused has been informed of these matters should be recorded. It has been held a fatal irregularity not to record this fact.  R v Rushinga & Others 1947 SR 1; R v Barnard 1951 SR 215.

Going back to the record, the learned trial magistrate in fact recorded these matters at the outset of the defence case as she was obliged to do in terms of the law. Part XI and XII of the Criminal Procedure and Evidence Act set out some of those provisions designed to guarantee some of the minimum fair trial rights. These include, but are not limited to, the right to be told promptly in a language that the accused understands, and in detail, the accusation against him and why he has been accused. Included in this compendium of fair trial rights are the following;

The right to remain silent.

The right to have adequate time and facilities to prepare his defence.

The right to have access to all relevant information.

The right to defend oneself in person or to choose ones counsel.

The right to be given free legal assistance if the accused cannot afford it.

The right to have witnesses for and against oneself treated in the same way; and

The right to have free assistance of an interpreter if one cannot understand or speak the language used in court.

If any of these rights is not observed, upheld, protected and fulfilled an accused person may not enjoy a fair trial as guaranteed in article 70 of the Constitution of the Republic of Zimbabwe. An infringement of any of these rights would prima facie constitute an irregularity in the trial procedure. However, in order to disqualify the proceedings from attaining the criteria of being substantially in accordance with real and substantial justice, the irregularity must be gross. In other words not every irregularity would be sufficient to vitiate proceedings on that ground: s29 (3) of the High Court Act, [Cap 7:06]; s 57 of the Magistrates Court Act, [Cap 7:10]. On review the criteria used is whether the irregularity goes to the root of procedural fairness. In deciding this question, the reviewing authority asks whether, in spite of the irregularity, substantial justice has been achieved. In assessing whether the record of proceeding measures up to this administrative standard, the whole record of proceedings is considered in order to answer that question. The method used in recording the proceedings, the reasons given in coming to the decision to convict, the available evidence on the record and the reasons given for the sentence imposed, and so on, are some of the factors which are relied upon in the assessment of the criterion of whether, substantially, justice has been served in a case despite the irregularity. The question to ask would, in these circumstances, be whether the failure to ask the accused if she intended to call witnesses resulted in a miscarriage of justice as a result of that failure traversing any one or more of the aforesaid fair trial rights.

Upon a fair consideration of all the circumstances of this matter I am satisfied that although the record is silent on this aspect, after the accused had given her evidence, because she had been properly advised of her fair trial rights at the outset, the accused was not seriously prejudiced by the failure to again ask her if she intended to call witnesses. The failure did not detract from the fairness of the trial. I am therefore satisfied that the proceedings were in accordance with real and substantial justice. They are confirmed.

Bhunu J agrees	…………………………