THE State V Manners Ngoni

### Preamble
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HH 731-17
CRB MRDP 1363/17
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THE STATE

versus

MANNERS NGONI

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 2 November 2017

Review Judgment

DUBE J: This matter was placed before me for review in terms of s 57 of the Magistrates Court Act [Chapter 7:10]. The accused appeared before a Marondera court facing a charge of contravening s 89 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23], assault. He pleaded not guilty and was convicted after a full trial and sentenced to perform community service. The brief allegations are that he assaulted the complainant several times all over the body using open hands causing injuries to the complainant. The complainant’s injuries were not visible.

The regional magistrate who scrutinized the record has forwarded the record to this court for review with the following comments.

“The trial magistrate did not record the accused’s plea and verdict at the back of the charge sheet. He admitted the mistake. Whilst no miscarriage of justice was occasioned the magistrate’s court is a court of record. The trial magistrate ought to have recorded everything.

I also found that the trial magistrate erred by referring to the State having proved its case beyond a shadow of doubt. In criminal trials, the State only needs to prove the accused’s guilt beyond a reasonable doubt. The trial magistrate again admitted that he erred.

My third observation was that the medical affidavit was not commissioned. It is clear the doctor signed the medical report in the absence of the commissioner of oaths on 11 January 2017. The document was then referred to the police who simply date stamped it on 21 February 2017.”

The learned regional magistrate is concerned about the admissibility of the uncommissioned medical report.

In response to the regional magistrate’s query, the trial magistrate stated that he failed to record the plea at the back of the charge sheet through oversight on its part. As regards reference to the state having proved its case beyond a shadow of doubt, he accepted that this is not the correct test adopted. He meant to say that the State had proved its case beyond a reasonable doubt. He failed to check that if the medical affidavit was commissioned due to pressure of work.

The regional magistrate’s first query relates to endorsements required to be made on a charge sheet. The charge sheet has no endorsement at the back to show that a plea was ever recorded from the accused. The trial magistrate’s notes reflect that the accused denied the charge leveled against him leading to the court trying him for the offence he faced. The practice of the magistrates court is to capture the plea of an accused person at the back of the charge sheet. This practice is to be followed whether the accused admits or denies the charge. I agree with the scrutinizing regional magistrate that the magistrate’s court is a court of record and as such all proceedings are required to be recorded and this is to be done in accordance with procedures laid down. This practice is not required to be followed as a matter of course. The mischief behind the practice is to ensure that superior courts exercising appeal, review or scrutiny functions are  able to follow proceedings and check if the proceedings were carried out in accordance with real and substantive justice. One can never be sure that a plea was recorded from an accused person if such a procedure is not recorded in the record. A magistrate who records a plea from an accused must record the plea and verdict of the proceedings at the back of the charge sheet. Failure to do so amounts to misdirection.

In its judgment the trial court found the accused guilty of assault and concluded as follows,

“I am convinced beyond doubt that the state was able to prove its case beyond a 	shadow of doubt”

This statement is misplaced. The standard of proof required to prove the guilt of an accused in a criminal trial is that beyond a reasonable doubt. The standard has its origins under the common law. An accused is at common law presumed to be innocent until proven guilty. The State has the burden to prove and satisfy the court that the accused is guilty. It must do so beyond a reasonable doubt. This is the highest standard of proof required to be proved in a criminal trial. The mischief behind the requirement of such a high standard is the realization that an individual’s liberty is at stake. If he is to be convicted and deprived of his liberty, the court must be satisfied that he is guilty of the offence charged. All that is required is for the State to show that the only deduction that can be made from the proved facts is that the accused committed the crime. Proof beyond a reasonable doubt does not call for proof to an absolute certainty. It does not mean that the court has to be satisfied that there is no doubt at all that the accused committed the offence. All that is required is that there is no reasonable doubt of an accused’s guilt. The standard does not preclude the possibility of error. The test is whether a reasonable person would be left with no reasonable doubt as to the guilt of an accused. The court does not have to be absolutely certain of the accused’s guilt. There are no requirements on the part of the State to prove its case beyond a shadow of doubt. The prosecution must prove the guilt of the accused beyond a reasonable doubt. Where the state fails to prove its case beyond a reasonable doubt the court must acquit the accused.

Proof beyond a shadow of doubt requires proof to an absolute degree of certainty. Proof beyond a shadow of doubt is not the same as proof beyond a reasonable doubt. The test for proof beyond a reasonable doubt is much less than that requiring   proof beyond a shadow of doubt. It is more than proof that the accused is probably guilty. It excludes the possibility of mistake and is a more stringent test than proof beyond a reasonable doubt. Proof beyond a shadow of doubt is not the burden of proof required to be proved in a criminal prosecution. The trial court adopted the wrong stance when it concluded that the state had proved beyond a shadow of doubt that the accused committed the offence concerned. The prosecutor in a criminal trial does not have to prove a standard of proof that is beyond a shadow of doubt in a criminal trial.

My first concern with the affidavit is that the record does not indicate that the affidavit was produced as an exhibit. The medical report just found its way into the record and is just attached to the record. The record does not indicate that the purported affidavit was put to the accused. The accused was required to be given notice of the medical report in terms of s 278 (11) of the Criminal Procedure and Evidence Act, [Chapter 9:07], a section allowing three days’ notice of the report to be given to an accused unless he unequivocally consents to its production by waiving that notice. Whenever the state wishes to produce a medical report, it must be put to the accused to determine his attitude to it. This was not done and this amounts to a misdirection. The injuries suffered by the complainant were placed in dispute during the trial. It is not known if the accused person would have objected to the production of the report.

The medical affidavit produced shows the injuries sustained by the complainant. It was not commissioned by a commissioner of oaths or justice of the peace as required at law. A medical affidavit is produced in terms of s 278 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The medical report must be made under oath and thus be sworn before a commissioner of oaths. Section 278, is required to be complied with strictly. In S v Zinqolo NR 2005 349 (HC) a Namibian High Court judgment, the court held that the provisions of s 212 (4) (a) and (8) (a) of their own Criminal Procedure Act 51 of 1977, a section similar to our own s 278 which deals with production of medical reports, must strictly be complied with in order for the certificate to be admitted as prima facie evidence of the injuries sustained.

The medical affidavit produced does not comply with the requirements of s 278. A medical affidavit that is not sworn before a commissioner of oaths does not constitute a medical affidavit as envisaged by s 278. It assumes the status of an ordinary statement. The medical affidavit does not, in the form in which it is, serve as prima facie proof of evidence of the injuries sustained. The practice of failing to properly commission affidavits ought to be discouraged as it opens floodgates to litigation and hinders the proper administration of justice. This mishap shows carelessness on the part of the authorities concerned .The court erred when it relied on an uncommissioned medical affidavit. The medical affidavit is inadmissible.

The evidence discloses commission of an ordinary assault for which a medical report may not have been necessary as there were no visible injuries sustained by the complainant. The medical affidavit was going to prove nothing. There is no prejudice that the accused suffered resulting from the production of an affidavit which has now been discounted. Taking into account the conduct of this trial, I am not satisfied that proceedings were conducted in accordance with real and substantive justice.

I withhold my certificate.