Zimbabwe Criminal Defense Manual - Appeals

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After a person has been convicted and sentenced by a criminal court, that person can appeal to a higher court against the decision of the trial court. An appeal is a request made to the higher court to change the decision. The court to which the appeal is made is referred to as the appeal court.

Types of appeal

Person convicted and sentenced by a criminal court may appeal to a higher court. In some cases leave to appeal has to be obtained. There are three types of appeal

  • an appeal against conviction alone;
  • an appeal against sentence alone; and
  • an appeal against both conviction and sentence.

The court to which the appeal will be made will depend upon which court tried the case.

Cases decided in Magistrates Court

Appeals against conviction, or against conviction and sentence, go to the High Court. The decisions by the High Court on appeal from the magistrates court can in turn be further appealed to the Supreme Court.

Cases decided in High Court

Appeals go to the Supreme Court in all cases, whether the appeal is against conviction or sentence or both. All cases in which the death penalty is imposed automatically go on appeal to the Supreme Court.

Rules governing various appeals

The rules governing appeals against decisions in criminal cases in the Magistrates Court are the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979 (published in Statutory Instrument 504 of 1979). These Rules will be referred to as SC Rules SI 504/79. The filing of heads of argument in an appeal against sentence to be heard in the High Court is regulated by the High Court (Miscellaneous Appeals and Reviews) Rules, 1975 (RGN 450 of 1975). These Rules will be referred to as HC Rules RGN 450/75. Appeals to the Supreme Court are governed by the Rules of the Supreme Court (SRGN 380 of 1964). These Rules will be referred to as the Supreme Court Rules. Reference will also need to be made to certain rules in the Magistrates Courts (Criminal) Rules, 1966 (RGN 871 of 1966). These Rules will be referred to as RGN 871/66. Throughout this section on appeals a Rule will be referred to as "R" e.g. : R 25 to refer to Rule 25 and an Order will be referred to as "O".

Appeals against decisions in magistrates court

General

All criminal appeals from the magistrates court are heard by the High Court. This applies whether the appeal is against conviction or conviction and sentence or sentence

There is no requirement that an accused must obtain leave to appeal from the magistrate who convicted him before he can take the case on appeal. This applies to appeals against sentence, appeals against conviction, and to appeals against both. There is a further right of appeal to the Supreme Court against the decision of the High Court on appeal from the magistrates court. The legal practitioner can indicate at the end of the trial in the magistrates court his intention to take the decision on appeal. He can thereafter apply for bail pending appeal.

Appeals against sentence only

Procedure

Appeals against sentence by persons who are legally represented are dealt with in Part 7 SI 504/79. Such an appeal must be noted within 5 days of the passing of sentence. This is done by lodging with the clerk of the magistrates court a notice in duplicate clearly and specifically setting out the grounds of appeal and giving an address for service: R 34(1) SI 504/79. The notice must comply with the Rules otherwise it is a nullity: Sibanda 2001 (2) ZLR 514 (H)

At the time of noting the appeal, or within 5 days thereafter, a deposit must be paid to the clerk of court for the estimated cost of one certified copy of the record of the trial. In place of a cash deposit the clerk may agree to accept a written undertaking by the appellant or his lawyer that payment will be made immediately after the appeal has been determined: R 34(2) SI 504/79.

Where the case is subject to automatic review, notice can be given within 4 days of the passing of sentence, that the noting of appeal against sentence will be deferred until after the determination of the review proceedings. If this notice has been given, a decision can be made after the review has taken place as to whether to proceed with the appeal in the light of what the review judge has decided. If the decision is to proceed, the appeal must be noted against the sentence (with such alterations, if any, as have been made by the review court) within 7 days of the determination of the review proceedings: proviso to R 34(1) SI 504/79.

Magistrate's response to noting of appeal against sentence

If this is still necessary, given the judgment already filed, within 5 days of the noting of an appeal by a legally represented person, the magistrate must supply to the clerk of court a written statement setting out the facts he found to be proved and his reasons for the sentence and dealing with the grounds on which the appeal is based. The magistrate must deal with the grounds of appeal even though he gave a thorough and detailed judgment in the case. A copy of this statement must be sent immediately by the clerk of court to the appellant's legal practitioner: R 23 SI 504/79. This statement does not have to be made if the magistrate is unavailable or is for some reason unable to comply with this requirement unless a judge of the Supreme Court directs otherwise: proviso to R 35(1) of SI 504/79.

Heads of Argument in appeal against sentence

The filing of heads of argument is governed by R 9A RGN 450/75. Heads of argument have to be filed before an appeal is set down. The heads of argument must set out the main heads (the main points) of the argument, together with a list of authorities which will be cited in support of each head.

As soon as the Registrar of the High Court receives the record or the other papers relating to the case he must send written notification to the parties and must call upon the legal practitioner representing the appellant to file with the Registrar heads of argument within 15 days. The appellant's heads must be filed within this 15-day period, which period excludes Saturdays, Sundays and public holidays, "or within such longer period as the judge may for good cause allow". If the heads are not filed within the 15-day period, the appeal will be regarded as abandoned and will be deemed to have been dismissed.

Immediately after receiving the appellant's heads, the Registrar has to deliver a copy of the heads to the respondent.

Within 10 days of receiving the appellant's heads, the respondent's legal practitioner has to file his heads with the Registrar. Immediately after the Registrar has received the respondent's heads he must deliver a copy of them to the appellant. This rule requiring filing of respondent's heads within 10 days is subject to the proviso that if the appeal is set down less than 15 days after the respondent receives the appellant's heads, the respondent must file his heads as soon as possible and, in any event, not later than 4 days before the hearing of the appeal.

Set down of appeal in High Court

In terms of R 10 RGN 450/75 the Registrar will set down the appeal. The Registrar must give at least 6 weeks' notice of the date of set-down to the parties to the appeal.

Leave to appeal out of time

In terms of R 47 SI 504/79, if a convicted person fails to note an appeal within the time limits prescribed, his right to appeal against conviction and sentence lapses. Time limits must be scrupulously adhered to: A-G v Lafleur & Anor 1998 (1) ZLR 520 (H)

However, in terms of R 48 SI 504/79, there is provision for making application to appeal out of time. Application for leave to note an appeal out of time is made to a judge of the High Court. The application must be lodged with the Registrar of the High Court. The application must be accompanied by:

  • a draft notice of appeal complying with the Rules; and
  • an adequate statement explaining why the appeal was not noted within the time period

prescribed.

A legal practitioner's earlier ineptness is not a ground on which the court will grant condonation. Sibanda 2001 (2) ZLR 514 (H)

The Attorney-General must be notified of the application and may oppose it by lodging written arguments in opposition. The applicant may then lodge written arguments in reply and may request that the matter be set down for oral argument. The Supreme Court judge dealing with the matter may grant or refuse the application or order that the matter be set down for oral argument. After the oral argument, the application may then be granted or refused. When granting the application, the judge can give directions regarding the future conduct of the appeal.

Leave to appeal against sentence should not be approached on same basis as application to appeal against conviction: McGown 1995 (2) ZLR 81 (S)

Renunciation of agency

If a legal practitioner who has been engaged to argue an appeal wishes to renounce his agency, he must do so in terms of Rule 12A of the Rules of the Supreme Court, 1964 (SRGN 380 of 1964).

Agency may be renounced at any time.

In Martin 1988 (2) ZLR 1 (S) the Supreme Court said that any renunciation must be made in terms of this Rule and must be notified to the Registrar. The decision not to continue to act for a client should be made well before the appeal is due to be heard so that the client can be given the chance, if necessary, to make other arrangements. The client should not be told to "Go along and do the best you can". An unrepresented criminal appellant has no automatic right of audience except in certain High Court cases. Section 10(1) of the Supreme Court of Zimbabwe Act, 1981 directs that an unrepresented appellant obtain a certificate from a judge of the Supreme Court before he is entitled to prosecute an appeal. The appellant should be advised of this requirement at the time of renunciation of agency. Failure to so advise him is a breach of duty to the client on the part of lawyer. See also Marenga S-32-88.

In Martin the court also said it is highly undesirable, if not unethical, for a lawyer to disclose to the court that he was renouncing agency on the grounds that the client had insufficient funds to pay the lawyer. If the client has no more money, the lawyer must decide whether he will continue to act for the client or not.

Appeals against conviction or conviction and sentence

Procedure

An appeal against conviction, or against both conviction and sentence, is heard by the High Court. Appeals against conviction or conviction and sentence by persons who are legally represented are dealt with in Part5 of SI 504/79.

The appeal must be noted within 10 days of the passing of the sentence. This is done by lodging with the clerk of court a notice in duplicate, setting out clearly and specifically the grounds of appeal and giving the legal practitioner's address as the address for service: R 22(1) SI 504/79.

If the appellant wishes to appeal but a request for reasons for judgment or sentence has been made in terms of R 3(1) O 4 of the Magistrates Courts (Criminal) Rules, 1966 (RGN 871 of 1966) then the appeal must be noted within 5 days of the receipt of the judgment or statement referred to in that rule, whichever is the later. R 3(1) provides that a convicted person is entitled to make a written request to the clerk of court, within 48 hours of being sentenced, that he be supplied with a copy of the judgment or, if there was no judgment, a statement from the magistrate giving reasons for conviction and setting out any special factors which were taken into account in sentence: R 22(1) SI 504/79.

At the time of noting the appeal, or within 5 days thereafter, a deposit must be paid to the clerk of court for the estimated cost of one certified copy of the record of the trial. In place of a cash deposit the clerk may agree to accept a written undertaking by the appellant or his lawyer that payment will be made immediately after the appeal has been determined: R 22(2) SI 504/79.

Where the case is subject to automatic review, notice can be given, within 4 days of the passing of sentence, that the noting of appeal against sentence will be deferred until after the determination of the review proceedings. If this notice has been given, a decision can be made after the review has taken place as to whether to proceed with the appeal in the light of what the review judge has decided. If the decision is to proceed the appeal must be noted against conviction and sentence, with such alterations, if any, made by the review court within seven days of the determination of the review proceedings: Proviso to R 22(1) SI 504/79.

Magistrate's response to noting of appeal against conviction

Insofar as this is necessary given the judgment already filed, within 5 days of the noting of an appeal by a legally represented person the magistrate must supply to the clerk of court a written statement setting out the facts he found to be proved and his reasons for judgment and sentence and dealing with the grounds on which the appeal is based. This statement must be sent immediately by the clerk of court to the appellant's legal practitioner: R 23(1) SI 504/79. This statement does not have to be made if the magistrate is unavailable or is for some reason unable to comply with this requirement unless a Supreme Court judge directs otherwise: Proviso to R 23(1) SI 504/79.

Appeal where accused pleaded guilty

An appeal against conviction where there has been a plea of guilty will only be entertained where from the words used by the accused in pleading to the charge it is demonstrated that the accused was raising some defence which could legitimately be raised to the charge. In the present case, the appeal was entertained because the accused in the words used when pleading was raising the defence of claim of right: Mudzingwa 1999 (2) ZLR 225 (H)

There is no right of appeal against an interlocutory decision in the magistrates court before the proceedings have terminated. Thus it is only after the proceedings have terminated that an appeal can be brought in which the appellant raises the issue of the correctness of the interlocutory ruling. This would include a decision by a magistrate turning down an application for him or her to recuse himself or herself. Masedza v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H). However, the High Court may, in exceptional circumstances, be prepared to review such a decision before the proceedings in the magistrates court have terminated

See Also


See Zimbabwe Criminal Defense Manual