Zimbabwe Criminal Defense Manual - Appeals against decisions of High Court

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Appealable Decisions

The following appeals against decisions of the High Court are heard by the Supreme Court:

  • Appeals against conviction and sentence or conviction or sentence in cases first tried in the High Court;
  • Further appeals against decisions of the High Court on appeal against sentences imposed in the magistrates courts, where the appellants are dissatisfied with the appeal decisions in the High Court.
  • Appeals against decisions of the High Court in regard to applications made to the High Court to review the proceedings in the magistrates court on the grounds of irregularities. There is, however, no right of appeal against decisions taken by High Court judges on automatic review of the proceedings.

Leave to Appeal

In some instances the leave (permission) of the High Court to appeal is required before the case can be taken on appeal to the Supreme Court: s 44 High Court Act, 1981. Where the High Court refuses to grant leave to appeal, the appellant is entitled to apply to a Supreme Court judge for leave to appeal.

Leave to Appeal not required

Leave to appeal is not required if:

  • the appeal is against conviction on any ground of appeal which involves a question of law alone (Where the appeal was brought on the ground of law alone but it turns out on appeal that the appeal involves a question of mixed fact and law, the Supreme Court can grant leave to the appellant to proceed without the appellant first having to obtain leave from the High Court);
  • the High Court imposed the death sentence and the appeal is against conviction or sentence or both;
  • where the sentence for the offence is fixed by law and the appeal is on the ground that the sentence passed was not the sentence fixed by law in respect of the offence of which the appellant was convicted.

Leave to Appeal Required

Leave to appeal must be obtained if:

  • the appeal is against conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact. (It involves a question of fact if the ground of appeal is that there was no evidence or insufficient evidence to justify a conviction);
  • the appeal is against sentence (or a forfeiture order) where the sentence was not that of death and it was not fixed by law.

Applications to High Court for Leave to Appeal

Such applications are governed by O 34 of High Court Rules, 1971.

R 262 Where leave to appeal is necessary, application for leave to appeal must be made orally immediately after sentence has been passed. The applicant's grounds for the application must be stated and these will be recorded. The presiding judge can grant or refuse the application as he thinks fit.

R 263 Where an application was not made immediately after sentence was passed, in special circumstances, an application may be filed with the Registrar of the High Court within 12 days of the date of the sentence. This application must state the reason why application was not made immediately after sentence was passed and the grounds on which it is contended that leave to appeal should be granted.

R 264 A copy of this application must be served on the Attorney-General immediately after the application has been filed with the Registrar. The Attorney-General may file with the Registrar written submissions on the application within 2 days of the date of service on him.

R 265 The application in terms of R 263 is then placed before the presiding judge in chambers, who can grant or refuse the application as he thinks fit. The judge in his discretion can require oral argument on particular points raised.

R 266 If an application for leave to appeal is not made within the 12 day period, an application can still be made for condonation of late filing of this application. Such an application must be filed with the Registrar and served forthwith on the Attorney-General and must be accompanied by an application for leave to appeal. Within 3 days of service upon the Attorney-General, he may file with the Registrar submissions on the condonation application and the application for leave to appeal. The applications will then be placed before a judge in chambers who can grant or refuse the applications.

R 267 An application for condonation may not be made more than 28 days after the passing of sentence unless the judge orders otherwise.

R 268 Where the presiding judge is not available to deal with any of these applications, they may be dealt with by another judge.

Summary

Immediate application

An application for leave to appeal must normally be made immediately after the passing of sentence.

Application within 12 days

Must be made within 12 days of sentence, stating reason why not made immediately.

Application between 12 and 28 days

Must be accompanied by application for condonation of late filing of application.

Application after 28 days

Only if judge prepared to order that application may still be made.

Withdrawal of Concession by Attorney-General's representative that leave to appeal should be granted

In the case of Masuku HB-114-04 when the applicant was convicted, the Attorney-General's representative (who had not himself prosecuted the case) conceded that leave to appeal should be granted. At the application for bail, the Attorney-General's representative (who had not appeared previously) sought to withdraw the concession. The court held that the Attorney General occupies a pivotal role in the criminal justice system. His opinion in applications before the court commands respect because of his experience and the responsibility of his office. A concession made by him must be an informed one; it cannot be withdrawn willy-nilly in criminal proceedings. If he seeks to withdraw a concession, this must be properly done, giving the accused an opportunity to make submissions, as the withdrawal of a concession will, in most cases, result in prejudice to the other side. There was no submission that the Attorney-General's previous representative was aware of the withdrawal that he made on behalf of the State. Even if he were aware, he would be required, as an officer of the court, to file an affidavit in support of the withdrawal accepting blame for erroneous concession.

Application to Supreme Court for leave to appeal

The procedure for applying for leave to appeal, where a High Court judge has originally refused such leave, is set out in Rule 19 of the Supreme Court Rules. The application must be on the prescribed form and accompanied by the grounds of appeal on its prescribed form. The application may be accompanied by written argument in support of the application. The application and two copies of it are lodged with the registrar of the Supreme Court and one copy is delivered to the Registrar of the High Court.

The Registrar of the Supreme Court will ask for a copy of the High Court judgment, the reasons of the judge for refusing leave to appeal and a copy of the indictment and any other relevant documents. These papers are sent to the Attorney-General. The Supreme Court judge may decide to grant leave to appeal without having a hearing or he may hold such a hearing first. A representative of the Attorney-General's office may appear at such hearing.

Criterion for deciding whether to grant leave to appeal

In Mutasa 1988 (2) ZLR 4 (S) it was stated that the test to be applied when considering an application for leave to appeal in terms of Rule 19(8) of the Supreme Court Rules is not whether the applicant has an arguable case but whether he has a reasonable prospect of success on appeal. If he has not, then leave to appeal should be refused.

Noting of Appeal in Supreme Court

The legal practitioner must compile the notice of appeal and the grounds for appeal.

Documents to be delivered: Notice of appeal and grounds of appeal.

To whom to be delivered: Notice plus two copies to Registrar of High Court and one copy to registrar of Supreme Court.

Periods within which documents to be delivered:

  • Where leave to appeal is not necessary the documents must be delivered within fourteen days of the date of conviction or sentence against which the appeal is being made.
  • Where leave to appeal has been granted by the High Court, within four days of the granting of leave to appeal or within fourteen days of conviction or sentence, whichever is later.

Where a Supreme Court judge grants leave to appeal no notice of appeal is required.


Grounds of Appeal


See Zimbabwe Criminal Defense Manual