You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1990 >>
[1990] BWCA 7
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
State v Mgwako (Criminal Appeal No. 18 of 1990) [1990] BWCA 7 (4 November 1990)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 18 of 1990
In the matter between:
Appellant
THE STATE
/
and
(
Respondent
JOSEPH RABASOTHO MGWAKO
Mr. M. C. E. Mhango Mr. W. E. F. Luke II
JUDGMENT
Coram: A. N. E. Amissah, JP. T. A. Aguda, JA. . B. A. Doyle, J.A.
AMISSAH, JA.
The point for decision in this appeal is one of pure of
law. The facts which grounded the charge against the respondent
of malicious damage to property contrary to section 337(1) of
the Penal Code Cap 08:01 before the Magistrate's Court are
therefore, not material to the decision. In its basic form,
the question for decision is whether an accused person charged
before a court who pleads in that court before a particular
judicial officer can be tried without a fresh plea being taken
by any judicial officer of that court other than the judicial officer who took his plea.
When the question came in an appeal before the learned Chief
2
Justice in the High Court, he decided it in the negative. The Attorney-General is dissatisfied with that decision. He has, consequently, brought this appeal to test the High Court's decision.
The proceedings which gave rise to the question of law were that the respondent was charged with the offence of malicious damage to property before one magistrate on the 20th of December 1988. His plea to the charge was then taken. The case was not thereafter tried by that magistrate. After a number of adjournments for various reasons, the evidence in support of the charge commenced before a different magistrate on the 12th of April 1989. The second magistrate but did not take a fresh plea but heard the whole evidence and the submissions in the case, and in due course convicted and sentenced the respondent.
On appeal to the High Court, the respondent contended that his trial was a nullity because he pleaded before one magistrate and was tried and convicted by a different magistrate who did not take his plea .
Conflicting authorities from various jurisdictions were considered by the court aquo in its judgment. One of these cases was the South African case of S v Gwala and Others (1969)(2) S.A. 227, in which the accused persons charged before a magistrate pleaded not guilty and four witnesses from the prosecution were called before that magistrate. Some ten months after the plea, the case came before another magistrate who recalled the four witnesses and tried the case de novo. It is not clear from
3
the report whether the pleas were again taken before the new
magistrate. But after hearing the evidence he convicted the
accused. On appeal to the Natal Provincial Division presided
over by Kennedy A.J.A. and Miller J. the case put forward was
that it was incompetent for the magistrate who convicted and
sentenced the accused to have re-opened the trial which he had
not commenced. The appeal was allowed on that ground. The
court aquo in this case cited the passage in the judgment of
Kennedy A.J.A. at page 229 of the report which said:
"There is no provision in the Criminal Procedure Act for the procedure adopted by the magistrate and such procedure is novel
to the eight Judges of this Division with whom I discussed this question; certainly, I have never previously heard in this Province of such a procedure being adopted. One has only briefly to consider the implications of the State's submission if it was validly made, to see what difficulties and hardships would immediately arise. In the appeal before us there was a delay of the months between the first plea and the verdict; secondly, it results in grave injustice to the accused ...".
The conclusion of the Natal Provincial Division as ennuciated
in the Gwala case was that:
"
upon a proper interpretation of sec. 169(6) of
Act 56 of 1955, [which, incidentally is in terms similar to section 150(4) of the Criminal Procedure and Evidence Act of Botswana] once an accused has pleaded.except where especially provided for in the Act or in any other law, or where it is impossible (for example in cases of death or recusal of the judicial officer), he shall be
entitled to demand that he be either acquitted or found guilty by the judicial officer who commenced the trial. The conception, of a fresh trial, under the circumstances of this case, appears to me to be directly in conflict with this sub-section".
It would appear that at the time of the decision, other
courts in South Africa had taken a different view of the matter.
In the case of S v Mhlanga (1959)(2) S.A. 220 (T), the Transvaal
4
Provincial Division in exactly the same circumstances, and
after the same point of law had been considered, each took
different view.
Classen J. speaking for himself in a judgment in which Boshoff
J. concurred, said:
"
the appellant was first charged before a
magistrate, Mr. Strydom, and before that magistrate he pleaded and some evidence was taken. Thereafter various postponements took
place and when the matter came up for trial again, the magistrate, Mr. Strydom, had been transferred to a post in South West Africa.
The case was then called befroe another magistrate , Mr. Conning, and the public prosecutor made an application before that magistrate that the case be tried de novo on the grounds that the provisions magistrate had been transferred to a new post. Appellant stated that he had no objection to a trial de novo. Thereafter the trial proceeded and the evidence was taken all over again and this second magistrate disregarded any evidence that had been given before the previous magistrate.
The point now taken on appeal is that the conviction is bad in law in that the court should not have tried this case in that the said case had been commenced before another magistrate, who was and still is available and could be obtained to try the said case. Counsel for the appellant relied on sec. 169(6) of the Code., inter alia, that the defence which had been raised before the magistrate was one of lis alibi pendens. Counsel then submitted that the appellant, having pleaded before another magistrate, was entitled to a verdict of an acquittal. This relevant subsection of the Code reads as follows:
"Any person who has once been called upon to plead to a charge, shall, save as is specially provided in this Act or in any other law, be entitled to demand that he be either acquitted or found guilty.
and the submission was made that the particular magistrate who had in the first instance recorded the plea should have been brought back from S.W.A. and should have continued the case.
5
In my opinion that point taken is not a good point. In opinion the relative sub-section of the Code relied upon applies if the court as then constituted at the time of recording the plea, continued in existence and retains jurisdiction until the time is ripe to render a judgment of acquittal or conviction. Many events may however occur after the taking of the plea which may render the proceedings abortive and therefore a nullity because the court,as constituted at the plea stage, has ceased to exist or the presiding judicial officer has ceased to have jurisdiction in the
matter. Such events may include the death of a magistrate, his resignation or dismissal, his recusal or his transfer out of the particular district. One can think of other possibilities too, but I think it is quite clear that the magistrate only has jurisdiction in a particular
district as long as his appointment in that district continued. The moment his appointment there is terminated, his jurisdiction has also came to an end. When an event such as a transfer has taken place, the magistrate has ceased to have jurisdiction in the court in which the plea was taken and the proceedings in the particular case therefore have become abortive; they have logically become a nullity.
I can find no valid ground therefore for an accused person objecting to plead before another magistrate either on the same charge or a different charge.
This conclusion seems to me to be in harmony with cases such as Pushon v Wise, N.O. and Others, 1948(1) S.A. 81 (N) and Zackey v The Magistrate of Benoni and Another, 1957(3) S.A. 12 (T)".
S v Suliman (1969)(2) S.A. 385 was a case which,
as a result of the original judge recusing himself during the
course of the hearing of the evidence, was heard de novo by
another judge. The appeal came before the Appellate Division
of the South African Supreme Court consisting of Ogilvie Thompson
Potgieter and Jansen J.J.A. In a judgment in which his brothers
concurred Ogilvie Thompson J.A. held that there was nothing
wrong with the trial de novo. Much of the judgment was taken
up with a consideration of the circumstances in which a judge
might properly recuse himself and whether a recusal by a Judge
bona fide but on grounds which were objectively inadequate
6
constituted an irregularity which occasioned a failure of justice.
The Appellate Division held on this point that it did not.
In the course of the judgment, the Court citing R. (sic) v Mhlanga
obvious with approval continued thus:-
"The mere fact that appellant had pleaded not guilty before Van Wyk de Vries A.J. does not, therefore, in itself entitle appellant to insist upon his trial being concluded before that Judge.
It is quite clear from the above cases that the question
of a trial and conviction by a judge or magistrate different
from the judge or magistrate who took the plea of an accused
person had not escaped from controversy in South Africa. At
least Mhlanga's case was prepared to admit a wider number of
occurrences for example, transfer from the district of a magistrate
as justifying a trial by a judicial officer different
from the judicial officer who took the accused person's plea
than Gwala's Case did. But it will be noted that both cases
dealt with a situation where after the plea, the original judicial
officer had taken some of the evidence at the trial before the
accused person came to be tried by the second judicial officer.
They were not cases arising from the situation where only the
formal plea had been taken before the first judicial officer
the whole trial after that has proceeded before another.
The case of R v Bernnet (1977 - 78) S.L.R. 127, from Swaziland in which the accused was charged and pleaded not guilty before one magistrate but the whole case was tried up to conviction and sentence before another magistrate, is more akin to the case before us.The case came before Nathan
7
CJ in the High Court. In his judgment, in which he considered
the cases of Gwala, Mhlanga and Suliman, Nathan C.J. concluded
at page 129 that:
"
although it may be a technical irregularity
for a plea to be taken before one magistrate and the trial then to be continued before another magistrate, this in itself is not such a grave irregualarity as to result in a failure of justice or to warrant the proceedings to be set aside".
Of the judgment of Kennedy A.J.P. in Gwala's case, Nathan
C.J. said at page 128:
"His reasoning, however, does not with respect, commend itself to me. It does not appar to me that any prejudice to the accused resulted from the second trial, and the learned judge made no reference to the proviso to section 369(1) of the South African Criminal Procedure Act (corresponding to the proviso to section 327 of the Swaziland Criminal Procedure and Evidence Act and s.85(5) of the Swaziland Magistrate's Courts Act 66 of 1938) in terms of which notwithstanding that any point raised might be decided in favour of the appellant, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings unless
it appears that a failure of justice has in fact resulted therefrom or that the accused has been prejudiced thereby".
All these cases had been decided after a consideration
by the respective courts of provisions similar in terms to our
section 150(4) of the Criminal Procedure and Evidence Act.
That provision reads as follows:
"A person who has once been called upon to plead to any indictment or summons shall, except as is specially provided in this
Act or in any other law, be entitled to demand that he be either acquitted or found guilty".
The judgment in the Zimbabwe case of Attorney-General v
Gavaza (1984) (2) ZLR 212 took as a starting point Gwala's case
and followed it up with references to other decisions
proceeding on the same lines. It made no reference to Mhlanga's
8
case or to the Suliman's case. I have no doubt that the Court
omitted to refer to these decisions only because they were not
brought to its attention. I cannot on the other hand say that
its conclusions would have been the same if its attention had
been so directed.
The judgment in the Gavaza's case ended on the following
note:
"The position then which obtains is that s.163(5) of the Act contemplates that the judicial officer before whom the accused has pleaded remains available to hear the whole of the trial. If he should become no longer available by reason of retirement,resignation or discharge from the service, death, physical or mental incapacity which is likely to persist for a considerable period, or recusal, he becomes functus officio. The proceedings are aborted and become void".
The above indicates the state of the judicial authorities on the point in other countries in Southern Africa when the case now under consideration by this Court came on appeal before the Court aquo.
Ten years or so ago, Hannah J. in Isaac Boikhutso Moima v The State 1982(1)BLR 112 had disagreed with Hayfron-Benjamin in The State v Keboletse 1979 BLR 74 over the significance of the plea. And it is clear from the many decisions of the Botswana Courts referred to by the Court aquo that the issue has recently taxed the minds of Courts here.
In the face of these conflicting authorities, the Court aquo in the case now before us came down in favour of the view which held proceedings where a plea is taken by one judicial officer and the whole of the evidence in the case is subsequently heard by another judicial officer of the same Court without
9
taking a fresh plea to be a nullity. Once more the legislative
authority which decided the issue was section 150(4) of the
Criminal Procedure and Evidence Act. It is the provision
which says that a person who has been called upon to plead shall,
except as specially provided by law be entitled to demand that
he be either acquitted or found guilty. The Court aquo was
of the view that Nathan C.J. in R v. Bernnet "placed very little
or no reliance on that statutory provision" and found fault
with Nathan C.J. saying that it did not appear to him that any
prejudice to the accused person resulted from the second trial
in S v. Gwala. Kennedy A.C.J, according to the court aquo had
indeed considered the question of injustice to the accused because
he said at page 229 of his judgment that:
"In the appeal before us there was a delay of ten months between the first plea and the verdict; secondly, it results in grave injustice to the accused" (emphasis supplied by the Court aquo).
The Court aquo then went on:
"The Acting Judge President was clearly of the view that grave injustice had resulted to the accused from the irregularity".
I believe what Nathan C.J. said was that whatever injustice
the accused had suffered in the Gwala Case was not clear to
him. With all due difference to the Court aquo difficulty
experienced by Nathan C.J. is not removed by the fact that Kennedy
AJP made the bare statement, without explaining how, that grave
injustice had been caused to the accused. What was the nature
of this injustice? That was not indicated. The delay of ten
months between first plea and eventually verdict mentioned in
the judgment was not specifically assigned to the fact that
10
the person who tried the case was not the person who had taken
the plea. There may be cases and Gwala's case would well have
been one, in which delay might rather be caused by insisting
that no one other than the judicial officer who took the plea
could undertake the trial to its completion.
I must confess that in spite of the repeated invocation
of section 150(A) or its equivalent in denial of the legality
of proceedings where different judicial officers take the plea
and the trial, I am not persuaded that the provision gives
the jurisdical basis for the view. The provision does not say
so in express terms. To arrive at that result, one would have
to attach the words "by the judicial officer who commenced the
trial" to the end of section 150(A). But that is a gloss added
on the judicial decisions which have taken that view. Once
that case had been decided on that basis, as indeed it was in
Gwala's Case, subsequent decisions following that authority
seemed to have repeated it as if the provision was so framed
in the Act. But the provisions in the Criminal Procedure and
Evidence Act dealing with matters like pleas refer to a court,
not a judicial officer. Take section 1A1, for example.
It says that:
"141 Subject to the provisions of section 307, the
accused shall, upon the day, appointed for his trial
or sentence upon any indictment or summons, appear
in court, or if he is in custody he shall be brought
into court, and shall be informed in open court of
the offence with which he is charged as set forth in
the indictment or summons, and shall be required to
plead instantly thereto,
It is this provision which is followed subsequently by section
150 (A) which gives the accused the right to demand to be
11
acquitted or found guilty. The words "court" and "judicial
officer" are defined in the Act and they do not mean the
same thing.
By section 3,
"court" or "the court" in relation to any
matter dealt with under a particular provision of this Act, means the judicial authority which under this Act or any other law has jurisdiction in respect of that matter".
On the other hand "judicial officer" is defined simply as
"a judge or magistrate". If the Act had wanted to equate court
with judicial officer, it would have done so. It would, for
example, have defined "court" not as "the judicial authority"
but as "the judicial officer",
To add to section 150(4) that the right to demand a conviction
or acquittal conferred on the accused is a right to demand it
invariably of the judicial officer who commenced the trial is
to put a restrictive gloss on the provision which it does not
of itself bear. According to that interpretation, the accused
who has pleaded, cannot demand conviction or acquittal except
from that particular judicial officer, save where that judicial
officer becomes functus officio. But if interpretation is
right, the logical conclusion where the particular judicial
officer becomes functus officio is that the accused should no
more be tried. The particular judicial officer of whom he demanded
conviction or acquittal could not convict or acquit him. No
one else should be able to do so. On that account I would be
loath to add to the simple provision of section 150(4) a limitation
that the right of the accused who has pleaded is to demand
12
conviction or acquittal not from the court, but from the same judicial officer and then categorise the number of instances in which that right cannot, because of physical, constitutional or other impossibility, be exercised.
Of course, I agree that the plea is an important feature preceding a criminal trial. The Act requires it. It is upon the pleading
that issue is joined between the accused person and the State. But I find it difficult to accept that, on the basis of our legislation, if the plea is taken before one judicial officer and the trial for some reason which does not cause a failure of justice or prejudice to the accused proceeds before another judicial officer, that trial must automatically be struck down as a nullity.
An examination of the Criminal Procedure and Evidence Act shows that the plea is dealt with under "Part XI Procedure before Commencement of Trial," while other matters which occur in the course of a trial are dealt with in "Part
XIII Procedure after Commencement of Trial" and other Parts of the Act. It is not unusual in criminal trials before a court for pleas in a number of cases to be taken at the same time, the court proceeding to dispose immediately of the cases where the pleas are guilty, while adjourning the others. If on the return date the particular
judicial officer is for some valid reason unavailable, the questio arises whether the case should be further adjourned to await his return or to have it heard by another judicial officer. Often further adjournments pending trial by the same judicial officer may cause more prejudice to the accused than a trial
13
by another judicial officer. Think of the accused's anxiety over the delay, the possible increase in the cost of his defence, his witnesses, his transportation. To apply a rule that in all such cases, the trial shall be a nullity unless taken by the judicial officer who took the original plea, is to institutionalise a rule which may cause injustice without compensating benefit. Justice requires that a trial be conducted wholly by the same judicial officer, not that a preliminary event
like the taking of the plea must be before the same person who hears the evidence and convicts or acquits the accused.
I do not believe that section 150(4) requires such an interpretation. In my opinion, what that provision says is that upon the accused
pleading, he is entitled to demand to be convicted or acquitted by the court not necessarily by the particular judicial officer taking the plea. The accused has a right to demand of the court, as the judicial authority empowered by the country, to convict or to acqit him of the charge he is now confronted with. In other words, he is entitled to demand a trial to establish his guilt or otherwise. Normally the court would be constituted by the same judicial officer from the taking of the plea through the actual conduct the trial. Where the court has started the trial by hearing evidence, it is of course contrary to the tenets of justice that another person who would be unable to appreciate the case as a whole should hear only the rest of the evidence. Of course, it is also in the interest of justice that the prosecution is not under any circumstances given an opportunity
14
of changing the judicial officer if they think a case which is part-heard by him is going against them. Where, however, the other judicial officer who hears the evidence in whole is aware that the accused has pleaded not guilty or maintains such a plea
the obvious question, even assuming that his taking jurisdiction is an irregularity, is what prejudice has the accused suffered? I can see none. That is why I am unable to join in the criticism of the judgment of Nathan C.J. in R v Bernnet.
In my view every case in which one judicial officer takes the plea and another takes the evidence has to be dealt with on its own
merits. In some of them the reason for the change may be unavailability due to the proceedings being abhorted by death or other physical,
mental or terminal causes which make it impossible for the judicial officer taking the plea to continue. But other reasons, including
the proper and necessary administration of justice may lead to a different judicial officer taking jurisdiction in the case. In every
such case the question should be whether the proceedings adopted had resulted in an irregularity, and if so, whether a failure of
justice or prejudice to the accused has occurred.
From what I have said before, it becomes obvious that in my view the mere taking of a plea by one judicial officer followed by the trial by another judicial officer does not involve an irregularity. That is sufficient to dispose of this appeal. Where, for example, no plea has been taken but the trial proceeds as if a plea of guilty has been taken, this would be irregular. Other cases of irregularity due to changes in the judicial officer
15
may occur in the course of trial which may lead to the proceedings
being declared either a nullity or irregular. The question
in each case then, is whether the irregular procedure followed
can be saved by the proviso which requires an appellate court
to dismiss an appeal i
an irregularity has been established
but no failure of justice has been occasion thereby(see section
325 of the Criminal Procedure and Evidence Act, section 10(1)
of the High Court Act and section 13(3) of the Court of Appeal
Act). I will not attempt an itemisation of these situations.
The Court aquo in this case recognised the question with
respect to a failure of justice, but postponed it as not being
necessary to the decision of the case. Had the Court aquo considered the questions,it would not have dismissed as unhelpful,
the English case of R v Williams (Roy) [1977] 1 All E.R. 874.
As the Court said, that decision showed that in England it was
permissible for an accused person to plead before one judge
and be tried by a different judge on the basis of his plea before
the first judge. The Court aquo, however thought that it was
doubtful whether there was statutory provision similar to section
150(4) which in England entiled an accused person to demand
a verdict before the magistrate, or presumably judge, before
whom the accused had pleaded. I have already said, with respect,
that I am not in agreement with the interpretation of section
150(4) adopted by the Court aquo which limits the trial of an
accused person to the particular judicial officer before whom
he has pleaded. But though we may not find statutory provision
like section 150(4) in England, the principle does there exist
16
in that accused person who pleads not guilty before
a court puts himself upon the country for trial. That to my
mind is, apart from quaintness of the language, not much different
from the sentiments embodied in Wfoe section 150(4). In both
cases, is joined between the accused and the State, and the
issue, therefore, has to be tried. Once such issue is joined
I think the trial can be taken by any judicial officer of the
court before which the accused pleaded. Further, I do not think
that any useful purpose is served by repeating the plea before
the trial judicial officer. It would already be on the record
of that court.
In this case we are faced with a situation where a court of justice says that for the protection of the accused it is better that
he be made to face the possibility of a second trial with all the attendant ordeal, the anxiety, expense and inconvenience only because
the judicial officer who took his plea of not guilty is not the same as the judicial officer sitting in the same court who heard all the evidence and the legal and
other submissions and took the decision in the first trial. I do not think that the legislation decrees such a course. Had it said so in express terms I would have felt compelled to apply it. But it has not. I am therefore bound to express my disagreement with the view that the trial before the magistrate's court was a nullity. No question of remedial legislation, therefore arises.
I would allow the appeal.
17
DELIVERED IN OPEN COURT IN LOBATSE ON 4TH NOWMBER, 1990
/A. VN. Y/. AMISSl Judge President
I agree:
T. A. AGUDA Judge of Appeal
I agree:
B. A. DOYLE Judge of Appeal
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1990/7.html
