Zimbabwe Criminal Defense Manual - Remands
A remand is requested by the State when it is not ready to bring a case to trial because police investigations are still taking place. The State will ask that X be remanded either in custody or out of custody. The magistrate may not order the postponement of a trial for a period in excess of fourteen days without X's consent: s 165 CPEA.
In terms of s 13(2)(e) of the Constitution, deprivation of a person's liberty on the grounds of the commission of a criminal offence is permissible only if there is a reasonable suspicion that he committed that crime. In terms of s 18(2) of the Constitution a person charged with a criminal offence is entitled to have his case tried within a reasonable time. This applies whether or not he is held in custody.
Where a legal practitioner goes to the courts to represent a person who is coming up for remand, he should check the records and visit the cells to make sure that his client has in fact been brought from the police station or remand prison to court on that day.
Where at the initial or subsequent remand the State is seeking the remand in custody of X, the court may only grant this application provided that there is a reasonable suspicion that X committed the crime with which he is being charged. In the case of Attorney-General v Blumears & Anor 1991(1) ZLR the following principles were laid down by the Supreme Court:
The State must allege facts that constitute a crime and justify a reasonable suspicion that the accused committed the crime. The accused's lawyer may submit that the State has not alleged such facts or may lead cogent evidence which obliges the magistrate to reject those facts. The remand procedure is an important protective process to ensure the finding of a reasonable suspicion by someone independent of the police and prosecution. The hearsay rule and cross-examination of witnesses do not apply. Statements can be made from the bar by legal counsel. Although the onus is on the State, it does not have to show guilt beyond reasonable doubt or on a balance of probabilities. The court cannot reject State allegations simply because they seem to be of doubtful validity.
In Blumears the appeal court said that the prosecutor must be as open and forthright as possible when advising the remand court of the facts relied on. It can be very difficult for the prosecutor to decide what to reveal and what to conceal in sensitive investigations which X might interfere with, but he should never conceal facts simply to hinder the defence and must ensure that he alleges enough to implicate X. In Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), it was held that in order to justify the applicant's deprivation of freedom on the grounds of reasonable suspicion that he had committed an offence, it was not necessary to establish his guilt beyond a reasonable doubt or even on the balance of probabilities. The test was the same as that for arrest without a warrant. There had to be sufficient information to warrant a prudent person in suspecting that the applicant was legally responsible for the alleged offence.
If the defence lawyer alleges that there is no case against his client and therefore that there is no basis for remanding him, the court may only remand X if it is satisfied that there are reasonable grounds for the remand. The remand magistrate should obtain information from the prosecutor justifying the existence of a reasonable suspicion on the initial remand, and the prosecutor must satisfy the court that there is still a reasonable suspicion against him at all subsequent remands.
It is the responsibility of the magistrate hearing applications for initial and further remands to ensure that the Constitutional provision giving an entitlement to trial within a reasonable period of time is observed. It is the duty of the remand court to decline to grant requests from the State for further remands when unreasonably long periods of time have elapsed since X was first charged. It must ensure that the State proceeds to trial within a reasonable time: Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S). Even where X is out of custody pending trial, the State is nonetheless obliged to ensure that the case is brought for trial within a reasonable time. Where X is in custody it is particularly important that the case be brought for trial within a reasonable time.
The accused's lawyer must ensure that his client's rights in this regard are not violated. If the State does not proceed to trial within a reasonable time he must complain to the remand court. Where the defence alleges that there has been an undue delay in bringing his case for trial, the onus is on it to prove that there has been such an undue delay: Fikilini v Attorney-General 1990 (1) ZLR 105 (S) and that he has asserted his right to a speedy trial: In re Hativagone & Anor S-67-04
If his client is out of custody, the defence lawyer can ask that a trial date within the near future be set, failing which the charge should be withdrawn. This will obviously not apply where the client has given the lawyer specific instructions not to push for the matter to be brought to trial speedily.
If his client is in custody he can apply for the release from custody of his client on the grounds that an unreasonably long period has elapsed in bringing the case for trial. Section 13(3) of the Constitution specifically lays down that if a person who is being held in custody is not brought for trial within a reasonable period of time, he must be released from custody conditionally or unconditionally but may still be brought to trial later. The onus is on the defence to establish that the accused person is entitled to be released because of unreasonable delay: In re Hativagone & Anor S-67-04
The lawyer may also ask that, in addition to the release of his client, the State should either proceed to trial within a short space of time or that the charges against his client be withdrawn.
If there have been protracted and unjustifiable delays in bringing the matter for trial the defence lawyer can apply for a permanent stay of the proceedings.
Accused in Custody
In Fikilini v Attorney-General 1990 (1) ZLR 105 (S) it was laid down that in determining whether a person's detention pending trial had become unlawful because of failure to bring him to trial within a reasonable time the court should take account of:
- whether in all the circumstances the length of his detention has been unreasonably long. The nature of the charge and the investigation process required to investigate that charge should be examined. Is the charge a complex one which demands lengthy and painstaking investigation or is it simple and straightforward and could have been disposed of speedily if the police had been efficient? Does the case require the gathering of evidence in other countries? Are there some vital witnesses which the State is still trying to locate?
- the reasons which the State has advanced for the delay. The State should obviously be required to advance reasons for the delays which have occurred in bringing the matter to trial. A proper reason, such as difficulties in locating a vital witness will justify an appropriate delay. But if it turns out that the State is improperly delaying bringing the case to trial in order, for instance, to hamper the defence, this will weigh heavily against the State.
- whether the accused asserted his right to have the case brought to trial within a reasonable time. If he has asserted his right this is evidence that he is being deprived of this right; but if he has not done so this may be indicative that his right is not being breached. (But the undefended accused may fail to assert this right because he does not know that he has this right.)
- the prejudice which may be occasioned to X by the delay. Will the preparation of the defence be impaired by the delay? Will it cause oppressive pre-trial incarceration? Will it lead to disproportionate anxiety and mental suffering?
Accused Out of Custody
Section 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be "dismissed". This provision is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Attorney-General ensures that trials of accused persons committed for trial are expeditiously conducted. See Mukuze & Anor v A-G (2) HH-17-05. In the Mukuze case the court decided that the six-month period mentioned in s 160 could be interrupted (a) if X is through circumstances beyond the control of the Attorney General not available to stand trial or (b) if the Attorney-General has in terms of s 108 ordered a further examination to be taken.
The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters. The defence lawyer will clearly push hard on these points except where his client has instructed him not to press for the matter to be brought forward for trial. In re Hativagone & Anor S-67-04 The appellants were arrested on criminal charges in 1998 and placed on remand. They denied the charges. In 1999 the charges were withdrawn before plea. Four years later, the accused were summoned to appear to answer the charges. The Attorney-General had deferred the prosecution of the applicants until the trial of the accomplice who was to be the principal witness against them was complete. This person had been prosecuted, but the proceedings were set aside and had to be restarted. The applicants brought an application for a permanent stay of proceedings, arguing that their right under s 18(2) of the Constitution to a fair trial within a reasonable time had been violated. The court held that in order for the application to succeed, it was necessary to consider
- the length of delay and whether it was presumptively prejudicial;
- the reasons for the delay;
- whether the applicants had asserted their right to a speedy trial; and
- the prejudice to the applicants.
In considering the length of the delay, the fact that the charge had been withdrawn before plea did not assist the State, as the withdrawal was not unconditional. The overall delay was presumptively prejudicial. However, the reasons given for the delay were reasonable in the circumstances and to a large extent the Attorney-General was not to blame for the delay. The applicants had failed to discharge the onus on them to show that they had asserted their right to a speedy trial. Although the applicants were prejudiced by the fact that potential defence witnesses were not available, having either died or emigrated, nonetheless, because the Attorney-General's explanation was reasonable and because the applicants had failed to assert their rights, the application must fail.
In Watson S-17-06 the applicant, while driving his vehicle, had negligently caused the death of a pedestrian. He was initially placed on remand on a charge of culpable homicide, but later placed off remand. Eleven years later, he was summoned to appear on the same charge. It was held there was an inordinate delay by the State in bringing the applicant to trial. The explanation for the delay was neither adequate nor reasonable. The delay was, by any standards, unreasonably long and could not be supported by any court of law. The applicant's rights under s 18(2) of the Constitution to a fair hearing within a reasonable time had been infringed. Anyone arrested or detained on a criminal charge should be promptly brought before a competent court of law, which will then exercise its judicial power over him, and such trial should be held within a reasonable time. This is to ensure that the accused does not suffer unduly prolonged uncertainty and that evidence is not lost in the process. The inordinate delay caused irretrievable prejudice to the applicant and a permanent stay of proceedings would be granted.
Similarly in In re Masendeke 1992 (2) ZLR 5 (S) there had been seven years' delay in a case involving a policeman who was on two simple charges of taking bribes. The magistrate referred the case to the Supreme Court under s 24(2) of the Constitution. There was no justification for such a protracted delay and it was not suggested that the accused was to blame for the delay. The Supreme Court ordered a permanent stay of proceedings.
See also Ruzario 1990 (1) ZLR 359 (S) and Kundishora 1990 (2) ZLR 30 (S).