Avoid elementary mistakes, judge tells magistrates

Source: The Herald – Breaking news.

 

Justice Paul Musithu found nothing irregular about the conviction of Calvin Madau on the first three counts and confirmed the convictions. But he cut the sentence by a quarter to reflect the fact that it was for three counts, not four counts.

Fidelis Munyoro-Chief Court Reporter

Magistrates should always be vigilant to avoid elementary mistakes, a High Court judge said while reducing the sentence of a man convicted of three counts of theft but receiving a sentence for four counts after a magistrate bungled in handling the trial.

Justice Paul Musithu found nothing irregular about the conviction of Calvin Madau on the first three counts and confirmed the convictions. But he cut the sentence by a quarter to reflect the fact that it was for three counts, not four counts.

“Trial magistrates are urged to be always vigilant so that elementary mistakes of this nature are avoided.”

While following the review of the lower court proceedings Madau has had his fine reduced and has to pay back less money to his victim, he can still be tried on the fourth count.

Madau was originally charged with four counts of theft but went on to plead not guilty to three counts instead of four. He was convicted on those three counts after a full trial. But on scrutiny, a regional magistrate noted that the record of proceedings was silent on what became of the fourth count and raised a query with the trial magistrate.

The trial magistrate conceded that she had erred in not recording the fourth count, but insisted though that Madau had pleaded not guilty to all the four counts.

The regional magistrate, however, noted that although the trial magistrate acknowledged the error, she was not being candid in stating that Madau pleaded not guilty to all the four counts since the record only recorded a plea of not guilty to three counts.

The record of proceedings clearly showed that Madau was not asked to plead to the fourth count.

It was on that basis that the regional magistrate declined to certify the proceedings as being in accordance with real and substantial justice.

In her judgment, the trial magistrate pronounced the verdict on three counts and proceeded to sentence Madau to pay a fine of Z$400 000 (or 30 days). In addition there was a jail sentence of eight months that could be fully suspended.

Three months were suspended on condition of future good behaviour and the final five months suspended if Madau paid back the complainant Z$630 000 through the Clerk of Court, Harare, by September 10 last year.

The sentence included the missing fourth count.

On review at the High Court, Justice Paul Musithu upheld the observations made by the regional magistrate that the record of proceedings clearly showed that Madau pleaded not guilty to three counts, and the court pronounced a guilty verdict on those three counts.

The amount of Z$630 000 that Madau was ordered to restitute was the financial prejudice that the complainant suffered in all the four counts.

And in reviewing proceedings of the magistrates’ court, Justice Musithu said the higher court decides on the basis of what is recorded in the record of proceedings, bearing in mind that the magistrates court is a court of record.

“A failure to record a plea in respect of any count of a charge is an irregularity that manifests itself upon a consideration of the record of proceedings,” he said.

“Such an omission is an irregularity which cannot be countenanced by this court.”

He said since Madau was never asked to plead on the fourth count, it followed that the sentence ultimately meted out by the court was not commensurate with his conviction on three counts instead of the four for which he was ultimately sentenced.

While the judge confirmed the conviction of Madau on the first three counts he set aside the sentence imposed on those three counts.

He ordered a cut of the fine by a quarter from Z$400 000 to Z$300 000, although retaining the jail alternative of 30 days.

The jail term was cut from eight months to six months, with three months still suspended on condition of future good behaviour and three months suspended on condition Madau restitutes the complainant Z$495 000 through the Clerk of Court.

Justice Musithu also directed the trial magistrate to ensure that Madau is summoned to court and informed of the new sentence.

If Madau had paid the sum of ZWL630 000 as restitution for the four counts, he shall be refunded the sum of Z$135 000 being the difference between the financial prejudice on the four counts for which he was sentenced and the three counts on which he should have been sentenced.

The refund Z$135 000 should be refunded within 14 days from the date of this order. The judge, however, said the Prosecutor General retained her discretion to institute a fresh prosecution against Madau in respect of count four.