The
applicant was a member of the Zimbabwe Republic Police who had attained the
rank of Assistant Inspector at the time he was discharged from the police
force. The circumstances which led to his dismissal were as follows:
He was
alleged to have contravened the provisions of paragraph 34 of the Schedule to
the Police Act [Chapter 11:10] in that he had allegedly performed “any duty in
any improper manner” on two occasions during the period extending from 1 April
2008 to 31 August 2008.
On the
first occasion, he was alleged to have withdrawn an unknown number of bags of
maize and exchanged them for four (4) cattle and four (4) goats without
permission from the Officer-in-Charge.
He had not entered the beasts in the official records known as bin
card. He had allegedly slaughtered one
goat for his personal use. The four (4) cattle and three (3) goats were
recovered. Secondly, on 20 December 2008, he had been assigned to purchase
maize from GMB, Gweru for the ZRP, Gweru town mess. He purchased seven (7)
tonnes of maize but only delivered six (6) tonnes to the mess. He, without
authority, took 18 x 50kg bags of maize to a grinding mill for reasons only
known to him.
He was
served with a notice to appear before a court presided over by an Officer, to
be held at 0900 hours at CID Provincial Headquarters, Gweru on 3 February 2009
to answer the above allegations.
On 29
January 2009, he addressed a letter to the prosecutor wherein he elected, in
terms of section 32 of the Police Act [Chapter 11:10], that he wished his
matter to be tried in the Magistrates' Court.
Section 32 of the Police Act [Chapter 11:10] is couched in the following
terms:
“If
notice is given, in the manner and time prescribed, by a member whom it is
proposed to try before a board of officers in terms of paragraph (c) of
subsection (1) of section twenty-nine that he wishes that the charge against
him be tried by a magistrates' court and not by a board of officers, the charge
shall be tried by a magistrates' court.”
The
above provisions relate only to a member who is to be tried by a Board of Officers.
A
member whose trial is before a court consisting of one officer is excluded from
having recourse to the above provisions. The provisions expressly mention
trials before a Board of Officers which has the effect of excluding trials
before one officer according to the maxim expressio unius est exclusio alterius. See Craies on Statute Law 7th
edition by S G G EDGAR…,. It therefore
follows that the applicant was not entitled to be tried by the Magistrates' Court.
The correct forum for the trial of his case was before one officer.
After
the hearing, the applicant was convicted of the first count but was found not
guilty and was acquitted on the second count. He was sentenced to undergo 14
days imprisonment at Fairbridge Support Unit detention barracks. He appealed to
the Commissioner General of the Zimbabwe Republic Police.
On
appeal, the Commissioner General, after examining the evidence which was on
record, concluded that the applicant had been wrongly charged with performing
any duty in any improper manner breaching the provisions of paragraph 34 of the
Schedule to the Police Act [Chapter 11:10]. The Commissioner General held that
the applicant should have been charged with contravening paragraph 39 of the Schedule
to the Police Act [Chapter 11:10] id est “Improperly using position as a member
for private advantage.”
The
Commissioner General, sitting as an appeal court, then proceeded to substitute
the conviction of the trial court with one for “improperly using position as a
member for private advantage.”
The
applicant complained that the Commissioner General, sitting as a court of
appeal, fell into error by substituting a conviction for a charge that was not
put to him so that he could respond to it.
The
attitude of the respondents to the applicant's complaint is summarised in their
heads of argument was follows:
“It is
common cause that when a person is being charged for having committed an
offence, there is an alternative charge that may be preferred against the
accused person. This is an elementary rule of procedure which applicant should
be aware of as he left the Zimbabwe Republic Police after having attained the
rank of Assistant Inspector. The case of alternative charges is taught to
recruits in depot and should not be an issue to a person facing a main charge
but being convicted on the alternative charge; the audi alteram partem rule he
cites recognizes this simple issue.
The
respondents are at a loss as to what applicant is trying to put forward with
this statement that “accused must also be charged with an offence that is an
offence at the time of its commission and which is recognized as such by law.”
When one is being charged for any offence at any particular time, there is the
possibility that he may face alternative charges; there is nothing peculiar
about this.”
The
above submissions by the respondents are without foundation.
Where
it is felt that the accused must be charged with a main charge and an
alternative charge both charges ought to be put to him. He ought to be charged
with both the main and alternative charge so that he prepares his defence in
respect of both charges. He must be heard in respect of each charge. He may elect to plead not guilty to the main
charge but guilty to the alternative charge. He is entitled to make that election.
He may plead not guilty to both the main and alternative charge in which case
the court may convict him of the charge that is supported by the evidence
adduced before it. The court must find him not guilty of the charge which is
not supported by the evidence before it. It is not competent for the court to
convict the accused of both the main and alternative charge.
Alternative
charges are provided for by section 145 of the Criminal Procedure and Evidence
Act [Chapter 9:07] where it is doubtful what offence has been committed.
Section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] reads
thus:
“If by
reason of the nature of an act or series of acts, or of any uncertainty as to
the facts which can be proved, or if for any other reason whatever it is
doubtful which of several offences is constituted by the facts which can be
proved, the accused may be charged with having committed all or any of those
offences, and any of such charges may be tried at one time, or the accused
may be charged in the alternative with having committed some or one of those
offences.” …,.
These
provisions become clearer when read with section 279(b)(ii) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] which recites as follows:-
“279. Concurrent
and alternative charges
In this
Code, the use of the word -
(a) …,.
(b)
“alternatively” whether in the phrase “concurrently or alternatively” or on its
own in relation to the charging of a person with two or more crimes, means that
the person may be charged -
(i) …,.
(ii)
With both or all those crimes in the alternative, if for any reason whatsoever
it is doubtful which of them he or she can be proved to have committed.”
What
these provisions mean is that the accused ought to be charged with both the
main charge and the alternative before the court commences to hear evidence in
order to determine which of the crimes he or she committed.
In casu, the accused was not charged with the
alternative charge which was substituted for the one the trial court had
convicted him. That was a serious irregularity entitling the accused to bring
the proceedings on review as he was not heard in respect of the charge. That
was contrary to the rules of natural justice in particular the audi alteram
partem rule.
An
accused person may be convicted for a crime other than the one he was charged
with where the essential elements of such crime include the essential elements
of the other crime as provided for in section 274 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. Section 274 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] recites that:-
“Where
a person is charged with a crime the essential elements of which include the
essential elements of some other crime, he or she may be found guilty of such
other crime, if such are the facts proved and if it is not proved that he/she
committed the crime charged.”
In casu,
the elements of the crime that the accused was charged with and those of the
substituted conviction are completely different. Paragraph 34 of the Schedule to Police Act
[Chapter 11:10] reads thus:-
“Omitting
or neglecting to perform any duty or performing any duty in any improper manner,”
Paragraph
39 of the Schedule to Police Act [Chapter 11:10], on the other hand, recites as
follows:-
“Improperly
using his/her position as a member for his/her private advantage.”
The
essential elements of the offences constituted by these two paragraphs are
completely different. It was therefore
not proper for the appeal court to substitute the conviction of the offence
charged with one that was not charged.
Summary
(1) A
member to be tried by a court consisting of one officer is not entitled to
elect that his case be tried by the Magistrates Court as the provisions of
section 32 of the Police Act [Chapter 11:10] expressly relate to trials before
a Board of Officers.
(2)
Where it is intended to charge an accused person with an alternative charge
that alternative charge ought to be charged together with the main charge so
that he can respond to it too as failure to do so falls foul of the audi
alteram partem rule.
In conclusion
the application for review succeeds….,. The order of this court is as follows:
It
is ordered that the conviction of the applicant, which had been substituted for
that of the court a quo, be and is hereby set aside.
