The Plea (Zimbabwe)

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Types of plea

At the start of the trial X is asked how he pleads. X must personally plead to the charge; his or her lawyer cannot enter a plea on his behalf.

If X pleads guilty, after the court has checked that X is genuinely and correctly admitting the charge, the court can then find him guilty as charged and sentence him.

If he pleads not guilty, the case then goes for trial.

If X refuses to plead at all or refuses to answer directly and unequivocally to the charge, a plea of not guilty may be entered. X's defence lawyer should obviously advise his or her client to make an unequivocal plea to the charge.

Guilty pleas from legally represented accused

Where X is legally represented, the court itself does not have to explain to X the charge, its essential elements and the acts or omissions upon which it is based. These explanations would be necessary with an unrepresented X. Instead, the court can rely upon a statement by X's legal representative that these things have been fully explained by him to X and that he understands them and is admitting to them: proviso to 271(2)(b) CPEA.

Defence counsel will be asked whether the guilty plea is in accordance with his instructions from his client. The court will ask if he explained all the essential elements of the crime to his client and if the client is admitting to all these elements.

Guilty pleas: murder cases

In a murder case, the client must plead and the defence lawyer must not plead for him.

Even if the client wishes to plead guilty to the murder charge defence counsel must explain to him that the practice is that even where X pleads guilty the court will always enter a plea of not guilty to murder and require that the State establish X's guilt in the normal way. Of course the court can take into account the words spoken by X when he was called upon to plead. Nangani 1982 (1) ZLR 150 at 154B.

Even though the defence lawyer knows that practice is automatically to enter a plea of not guilty, he will want to include the admission in the defence outline. He will advise his client to plead guilty if his client has instructed him that he wishes to make a clean breast of it and admit his guilt. A candid admission of guilt, linked up with other factors, may tip the balance in favour of extenuation when it comes to sentence, so it may be critically important that, at the outset, X's admission of guilt is indicated.

Unclear or equivocal pleas

These sorts of pleas should not arise in cases where X is legally represented, because the lawyer should have clarified matters and advised the client upon the correct plea on the basis of his instructions. For example, in a case of receiving of stolen property, the lawyer will have clarified whether or not the client was aware the property was stolen. If the client was unaware of this, the lawyer will advise him to plead not guilty. Thus this type of ambiguous plea should not be made: "I suppose I'm guilty. I agreed to look after my boyfriend's bike and he's now been arrested for stealing it."

Plea that previously acquitted or convicted (autrefois acquit or convict)

A person may only be tried once in respect of a crime. If he has previously been tried and either acquitted or convicted for that crime, he cannot be tried again for it: 180(1)(c) and (d) CPEA. The terms autrefois convict and autrefois acquit which are used in the cases are not used in the CPEA. A plea that he has been tried previously must be dealt with as a preliminary matter before any evidence is led. The question is whether the facts necessary to support a conviction on the current charge are the same as those in the previous case: Ndau 1971 (1) SA 668.

In Moyo HB-18-84 X raised the defence of autrefois acquit. He had previously been convicted of unlawful possession of a firearm. He had thereafter continued to possess it without a firearms permit. The question was whether he could be tried again for this offence arising out of his continued unlawful possession. The answer was that he could be, since the possession since the previous conviction was a new set of facts.

In Gore 1999 (1) ZLR 177 (H) the court held that for the purposes of a criminal charge the payment of a deposit fine is prima facie an unequivocal acknowledgement of guilt and when an acknowledgement of guilt and a deposit fine is confirmed by a magistrate, the offender will stand convicted and sentenced by a court. He cannot be convicted again in respect of substantially the same offence, as this will violate the autrefois convict rule.

Section 180(2)(c) does not preclude a new trial where the previous conviction has been set aside by reason of irregularity. See s 18(6) (a) and (b) of the Constitution. In such cases a re-trial may be proper because the previous proceedings have been set aside or a re-trial has been ordered: Manera 1989 (2) ZLR 92 (S); Mlauzi S-48-92.

Other pleas

Other pleas which can be raised are that the court does not have jurisdiction to try the case or that the prosecutor has no title to prosecute: 180(2)(f) and (g) CPEA.

There can also be a plea that he has already received a pardon from the President for the offence charged: s 180(2)(e) CPEA.

Guilty plea to lesser offence than that charged

Where the facts indicate the commission of the crime charged, the State and the court should not accept plea of guilty to a lesser offence to save time: Mahango HH-132-87.

Change of plea before evidence led

After X has pleaded guilty before one judicial officer and been found guilty by him on the basis of the plea, the proceedings may have been adjourned for some reason. If X then decides to change his plea, another judicial officer is permitted under s 180(6)(ii) CPEA to hear an application to change his plea, provided that no evidence has been adduced at the first hearing: Dube & Anor S-126-89.

If X makes an application to change his plea during the course of the enquiry in terms of s 271 CPEA following a plea of guilty, but before verdict has been delivered, there is no onus on X to convince the court of the truth of his explanation why he wishes to change his plea: Haruperi 1984 (1) ZLR 258 (H).

Sometimes a defence lawyer may have been engaged to represent X who has already pleaded guilty. Sometimes X may wish to change his plea on such grounds as that the police forced him to plead guilty because of threats or that they induced him to plead guilty by telling him he would only be released on bail if he pleaded guilty or by informing that he would receive only a light fine if he pleaded guilty.

Withdrawal of charge after plea

Once X has pleaded he is entitled to a verdict, and if the charge is withdrawn the court must enter a verdict of not guilty: s 9 CPEA.

The Attorney-General has an unfettered discretion to withdraw charge before plea at any time and institute proceedings afresh: In re Kwenda 1997 (1) ZLR 116 (S).

Where prosecutor withdraws after plea, the effect is that the court has no power to continue with the trial thereafter: Chari 1998 (1) ZLR 180 (H)

The prosecutor may make the decision to withdraw where the case against X runs into problems and it appears unlikely to succeed. In these circumstances the prosecutor may withdraw the charge in order to avoid wasting the time of the court. Sometimes the prosecutor takes this course as a result of a suggestion from the defence lawyer. While it is perfectly in order for a defence lawyer to make such a suggestion during an adjournment, the same cannot be said of whispered comments made to the prosecutor in court.

Insistence that plea be recorded at early stage

Not infrequently there are delays in bringing a case for trial; the case gets remanded on several occasions and then, when finally it comes up for trial, the State requests yet another postponement because, for instance, the State witnesses have failed to attend. These cumulative delays may be so unreasonably long that the defence may apply for further proceedings to be stayed on the grounds that his client has not been tried within a reasonable period of time as required by s 18(2) of the Constitution. Alternatively, the defence lawyer can ask the prosecutor to allow his client who is pleading not guilty to plead to the charge before the case is further postponed so that if the State later decides to withdraw the charge the court will then record a verdict of not guilty and the matter will end there. If on the other hand the State withdraws the charge before plea then X can later be charged again with the same offence. However, the ultimate decision whether to withdraw a charge before or after plea lies with the State and the court has no power to order the prosecutor to put the charge to X in order that he plead thereto.

Zimbabwe Criminal Defense Manual

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