Chief Court Reporter
Two prisoners serving jail sentences for robbery and assault have been released by the High Court when it reviewed the convictions because the Mount Darwin magistrate who sentenced them accepted their guilty pleas without explaining the elements of the charges they were facing.
Now Prosecutor-General Mr Kumbirai Hodzi will have to decide whether to bring the two to court and restart the trials before a different magistrate.
Justice Tawanda Chitapi released the two when the records came before him for routine review. Kenmore Sign was jailed for robbery and Blessing Kutyauripo was jailed for assault.
Sign was convicted of robbery which occurred on September 20 last year at Mukarichi panning site, Mt Darwin, when with accomplices, Sign tripped the victim who fell to the ground before his accomplices forcibly took from him a cellphone handset plus $210 and US$575 in cash.
Kutyauripo was jailed an effective 18 months for assaulting his victim at a house in Mupfuri Heights with a wooden plank seriously injuring the victim.
Both cases were separately dealt with by the same magistrate at Mt Darwin magistrates’ court.
During the review at the High Court, required for many criminal cases where a magistrate has imposed more than a trivial jail setence, Justice Chitapi noted that in both cases the trial magistrate bungled when he failed to explain the charge to an accused person before asking them to plead.
After picking up the error of the magistrate, the judge sought an explanation from the magistrate who simply apologised for the error.
Based on the error of omission, Justice Chitapi ruled that this failure resulted in an unfair trial.
“An unfair trial cannot be condoned and no law may in terms of Section 86 (3)(e) of the constitution limit the accused’s rights to a fair trial,” said the judge while setting aside the convictions as well as sentences which were imposed on Sign and Kutayauripo.
“The accused persons shall be forthwith released from custody. The Prosecutor-General retains his discretion to prosecute the accused persons afresh.” Justice Chitapi ruled that in the event of a fresh prosecution being instituted the case should be dealt by a different magistrate.
In addition, said the judge, in the event of a conviction the accused should not be sentenced to a more severe sentence than the imposed in the quashed proceedings.
The sentence already served would be considered as an already served portion of the sentence which the court may impose on retrial.