THE STATE v SEDA 1980 ZLR 109 (G)

Author: Trodat Zimbabwe

THE STATE v SEDA 1980 ZLR 109 (G)

1980 ZLR p109

Counsel                 Details not supplied

Case Type             Criminal Review

Annotations          Link to case annotations

Flynote

Criminal procedure — outline of State case given by prosecutor in magistrates Court — need for outline to be recorded. C

Headnote

As a matter of practice the outline of the State case which a prosecutor in a magistrates Court is required to give by section 163 (4a) of the Criminal Procedure and Evidence Act [Chapter 59], must be recorded in all cases.

1980 ZLR p110

Squires J

Judgment

Squires J: The accused in this case, who was an auxiliary constable carrying out duties on farms in the surrounding district, was charged before the Court of the magistrate at Rusape with assault with A intent to commit grievous bodily harm.

[The learned Judge set out the facts and continued:]

The Regional Magistrate before whom the matter came for scrutiny, queried two aspects of the case? first, that the outline of the State case _B had not been recorded by the trial magistrate . . . [the second query is not relevant to this report. ­ Editor.]

Following the magistrate’s reply to these queries, the matter has now been referred to this Court in terms of section 63A (3) (b) of the Magistrates Court Act [Chapter 18], with the Regional

Magistrate’s observations _C that it is essential that the State case outline be recorded, and that the accused should have been found guilty of the more serious charge and sentenced accordingly.

In reply to the first inquiry referred to above, the trial magistrate said _D that he did not, as a general rule, record the outline of the prosecution case, but contented himself with ensuring that a detailed outline was given verbally at the appropriate stage in the proceedings. This had been done in the present case.

Now, although the amendment to the Criminal Procedure and Evidence _E Act [Chapter 59] ^* which introduced the requirement for an outline of the State case to be given is in fact silent on the point of whether or not this outline should be reduced to writing, I have no doubt that it is highly desirable, if not absolutely necessary, to do so. Since the object of such _F outline is to advise the accused of the case he has to meet as deposed to by the State witnesses, it is in the first place important that it be stated in permanent form so that, following the evidence as it is given, the Court can judge at least its consistency, and therefore, to some extent, its reliability. Secondly, if at any stage the evidence adduced by an accused departs from _G his outline of case, and the extent or seriousness of this departure depends in any way on comparing it to the case he was advised he had to meet, it would be difficult even for the trial Court to investigate properly if there were no record of the State outline, and quite impossible for any higher Court. In fact, the importance of the part played by the respective outlines of case in a criminal trial cannot be overstated. They perform a similar _H function to the pleadings in a civil trial, and serve not only to identify

1980 ZLR p111

Squires J what may be in issue between the State and accused, but to advise each of the substance of the matters that are in issue, with the obvious advantages this affords of avoiding delay in completing the trial. In addition, _A it must always be appreciated that just as any significant and unexplained departure by the accused in his evidence from the outline of the defence which he makes, may be a matter for comment or even adverse conclusions, so does such a consequence affect what is said by the State witnesses. _B

I have consulted all the Judges of the General Division and they share the conclusion stated above. As matter of practice, therefore, if not of law, the State outline must be recorded in all cases. It would, of course, help greatly, and save the time of the Court, if this was prepared before _C hand by the prosecutor, as is done the General vision, and read out either before or after being handed in to the Court. But whether it is done by the prosecutor beforehand or recorded by the Court as recited by the prosecutor, it should be done in all cases. _D

[The remainder of the judgment is not material to this report. ­ Editor.]

     *   The Act was amended by section 10 of Act of 31 of 1978, which inserted subsection (4a) into section 163. ­ Editor.