The charge (Zimbabwe)
The trial starts off with the reading of the charge. The charge must be clearly and correctly formulated and properly laid, either under common law or under statute. The offence must be properly described and adequately particularized. If it is not, the defence lawyer can except to the charge.
Where the charge is a statutory one, the defence lawyer must be check to ensure that the correct section of the Act or Statutory Instrument has been cited as well as the penalty section, and that the particulars correspond with the provision itself. The defence lawyer can except to the charge if these requirements are not satisfied: Chamurandi HH-182-86; Vhere HH-211-86; Zvinyenge & Ors 1987 (2) ZLR 42 (S).
It was pointed out in Siphambili 1995 (2) ZLR 337 (S) that if the indictment is deficient in particularity that deficiency would not necessarily be fatal. The test was whether it would prejudice the accused. Unless time is of the essence of the charge, it is sufficient if the day or period alleged in the charge falls within a period of three months before or after the commission of the offence. The court decided that any embarrassment which might have resulted from the inaccuracy in the charge should have been raised before plea, as a request for further particulars or as an exception. If the defence does not object before plea to the lack of particularity in a charge which discloses an offence cannot rely on the defectiveness of the charge at the end of the trial.
It was made clear in Sabawu & Anor 1999 (2) ZLR 314 (H) that it is the prosecutor's right to determine charges to prefer and to ensure that which the accused is charged with the correct offence.
Exception to charge
The procedure when there is an exception to the charge is set out in s 171 CPEA. Defence counsel will usually except to the charge on his client's behalf before plea. If the exception is made before plea the court must deal with this matter first before requiring X to plead: 171(1) CPEA. This applies both to an exception on the ground that the charge does not disclose an offence and to an exception on the ground that the charge does not disclose reasonably sufficient particulars to inform X as to the nature of the charge against him as required by s 146 CPEA.
However, if the exception succeeds, the State can be given the opportunity to re-draft the charge and the newly worded charge can then be put.
If the exception is dismissed, X will then be asked to plead.
If X pleads first and the defence lawyer then excepts to the charge, the court has the discretion whether to dispose of the plea or the exception first: s 171(2) CPEA.
Unjustified charging of less serious offence
Defence counsel may have agreed with the prosecutor that his client will plead guilty if he is charged only with a lesser offence than that with which he was originally charged.
However, the cases say that it is not in the interests of justice that a person should be charged with a lesser offence when the admitted facts show that he is guilty of a more serious charge. In such an event the trial court may query why X is being charged only with the less serious charge. Thus if the State allegations clearly suggest that X has committed the crime of assault with intent to do grievous bodily harm but the State has brought a charge only of common assault against X, the judicial officer is quite entitled to question the prosecutor on why the lesser charge has been preferred: Chidodo & Anor HH-215-88.
In the case of Thebe HB-16-06 the judge pointed out that while the prosecutor is dominus litis, this rule is not absolute. The trial court, as a trier of facts whose main object is to do justice between man and man, therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it. It is, therefore, within its power to prevent the State from proceeding on a lesser charge where justice clearly requires a more serious one.
Splitting of charges
It is unfair that X be charged with two or more separate crimes in circumstances where he should have been charged with one crime because the conduct really only constitutes one criminal offence. Defence counsel should raise an objection where there has been improper splitting of charges.
In Zacharia HH-17-02 it was held that there are two tests for whether there has been an improper splitting of charges, the "single intent" or "continuous transaction" test and the "same evidence" or "dominant intent" test. The latter is related to the intention of the accused person as he performs several acts which are logically and intrinsically connected to the one offence which he then commits. The concern whether the criminal conduct is in reality a single conviction is aimed at avoiding prejudice to the accused where the duplication of convictions arises. If no prejudice is occasioned to the accused, then the question whether or not there has been a duplication of convictions becomes one of little or no consequence. The prejudice to the accused may be avoided by treating all the separate counts as one for the purposes of sentence.
Simply because several criminal acts form part of one related transaction does not mean separate crimes have not been committed and that there has been an improper splitting of charges.
There will, however, be an improper splitting of charges -
- if a person commits two acts, each of which standing alone would be criminal, but does so with a single intent and both acts are necessary to carry out that intention; or
- where the same evidence which is essential to prove one criminal act is also essential to prove another criminal act.
In both these instances, X should be convicted of only one crime: Peterson 1970 RLR 49; Chinemo 1985 (1) ZLR 32 (H).
Where the charging of more than one offence would constitute improper splitting, the State should charge the offence which represents the dominant purpose of X in engaging in that conduct: Jambani 1982 (1) ZLR 213 (H).
Cases in which court found that there was splitting
Mhandu 1985 (1) ZLR 228 (S): an improper splitting to charge X with three separate offences of "statutory rape" where he had had sexual intercourse with the under-age girl on three separate occasions during one month.
Tugwete HH-672-87: where a person drives a motor vehicle without footbrakes and a handbrake he commits a single offence not two offences.
Matimba 1989 (3) ZLR 173 (S): an improper splitting to charge breach of the various duties under s 61 of the Road Traffic Act (failing to stop, failing to attend to injured persons, and so on) as separate offences.
Cases in which court found that there was no splitting
In Peterson 1970 RLR 49 The accused stole a car and later abandoned it but burnt it to prevent the discovery of any finger prints in the car. The accused were correctly convicted of both theft and malicious injury to property because, although the offences were related and formed part of one continuous transaction, there was not a single intent and the evidence of theft was not essential to prove malicious injury to property. (The related nature of these crimes could nonetheless be taken into account for the purposes of sentence.)
In Maniko & Anor HH-44-91 the review judge decided that in neither of two cases had there been improper splitting. In the first a person had properly been convicted of two counts of assault where he had assaulted one person and had then assaulted another who had tried to intervene. In the second X had properly been convicted of two counts of stock theft where X had stolen cattle from two people at the same place but an hour apart. Other cases
Frank 1968 (2) RLR 257 (assault and malicious injury to property); Attorney-General v Jakubec 1979 RLR 267 (excessive blood alcohol and negligent driving); Lamont 1977 (1) RLR 112 (incitement and substantive offence incited); P & Ors 1976 (1) RLR 142 (GD) (possession of arms of war and act of terrorism); Tebie & Anor 1965 RLR 198 (robbery and theft); Simon 1980 ZLR 162 (GD) (robbery and impersonation of policeman).
Withdrawal of charge before plea
If the State withdraws the charge before plea, no verdict is entered and the State is at liberty to bring X back to court at a later date on the same or a different charge. The State may decide to withdraw the charge before plea for a variety of reasons such as illness of a vital witness or delay in securing important evidence. This is a matter of discretion and where the State has decided to withdraw the charge before plea, the defence cannot demand that the charge be put before withdrawal.