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Criminal
Procedure and Evidence Amendment Bill, 2006 (H.B. 3, 2006)
May 19, 2006
Published in Government Gazette Friday 19th May, 2006
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Criminal
Procedure and Evidence Amendment Bill, 2006
MEMORANDUM
This Bill seeks
to amend the Criminal Procedure and Evidence Act [Chapter 9:07]
(the “principal Act”) in certain major respects. Firstly,
it is proposed to abolish the obsolete procedure known as the “preparatory
examination”. Secondly, flowing from the abolition of the
“preparatory examination” procedure, it is necessary
to re-enact certain provisions previously applicable to both preparatory
examinations and to what are called “confirmation proceedings”
so that they apply only to the latter. Thirdly, also flowing from
the abolition of the “preparatory examination” procedure,
it is necessary to provide for some form of verification of the
evidence of certain witnesses gathered at the beginning of a criminal
investigation to secure its admissibility at the trial in case those
witnesses later die or otherwise become unavailable. Finally, the
existing law relating to bail is sought to be comprehensively codified
and reformed.
In more detail,
the individual sections of the Bill provide as follows:
Clause
1
This sets out the Bill’s short title.
Clause
2
This clause seeks to insert the definitions of “sexual offence”
and “suitably qualified nurse” in the interpretation
section (section 2) of the principal Act. The purpose of these definitions
is explained below in connection with clauses 23 and 25.
Clause
3
This clause seeks to repeal Part VII of the principal Act and to
replace it by a new Part to the effect described below.
The present
Part VII of the principal Act provides for “preparatory examinations”,
as well as what are called “direct indict” proceedings.
Some historical background is required to appreciate the meanings
of these terms. Prior to 1962, no criminal trial could be held in
the High Court until after a preparatory examination by a magistrate
had established that there was sufficient reason to believe that
an “indictable” offence had been committed, that is,
an offence which was triable by the High Court. This proceeding
involved the calling of witnesses and the examination of their evidence
by the prosecutor and the accused and his or her legal practitioner.
If the magistrate found sufficient reason to believe that an indictable
offence had been committed by the accused, the magistrate would
commit the accused for trial in the High Court and transmit the
record of the preparatory examination to the Attorney-General, who
might then, depending on the nature of the case and the evidence
led, indict the accused for trial before the High Court or remit
the case back to a magistrate for trial. At the trial the same witnesses
were called and the same evidence was led as were called and led
at the preparatory examination.
In 1962, the
principal Act was amended to give the Attorney-General power to
bring any case to trial before the High Court without holding a
preparatory examination. The idea was to avoid the expense of time
and resources (to both the State and the accused) involved in holding
a preparatory examination, especially in cases that were straightforward
or where there was difficulty in securing the attendance of witnesses.
This “direct indict” procedure, as it became known,
was increasingly resorted to, until preparatory examinations practically
ceased to be held (the last preparatory examination was completed
in 1999).
Accordingly,
the new Part VII provides only for “direct proceedings”
in recognition of what has been the practice for some time.
Clauses
4, 5, 6, 7 and 8
These clauses amend Part VIII of the principal Act, which provides
for “confirmation proceedings”. The nature of these
proceedings is explained below.
Ordinarily,
what are called “extra-curial statements”, that is to
say statements, including confessions, made outside of the court
to investigating police officers or other persons, are admissible
by the court as evidence if the accused accepts that such statements
were indeed made freely and voluntarily and without undue influence.
Where, however, the accused disputes that any statements were made
by him or her freely and voluntarily without undue influence, a
“trial-within-a-trial” ensues to determine the issue.
The State must then discharge its onus of proving that, notwithstanding
the accused’s denial, the statements were made freely and
voluntarily, otherwise the statements will not be admissible as
evidence by the court.
In order to
avoid these frequently lengthy “trials-within-a-trial”
proceedings, a prosecutor may choose, before the trial of the accused,
to “confirm” the extra-curial statements of the accused
before a magistrate under Part VIII of the principal Act. If the
accused does not deny that the statements were made freely and voluntarily,
the statements are confirmed by the magistrate and become admissible
at the trial of the accused. The accused may still challenge their
admissibility at the trial, but the onus then rests on him or her
to show that the statements were not made freely and voluntarily.
If, on the other hand, the accused denies at the confirmation proceedings
that the statements were made freely and voluntarily, the magistrate
will ask particulars of the grounds upon which the accused bases
his or her challenge so that the matter may be investigated and
the State be put in a better position to inquire into and refute
any allegations which have been made. In this way the State receives
fair notice of any challenge to the extra-curial statements it may
seek to have admitted into evidence at the trial of the accused,
and is not taken by surprise at the trial by allegations of which
it was not made aware before.
The proposed
abolition of the “preparatory examination” procedure
involves the re-enactment and modification of certain provisions
previously applicable to both preparatory examinations and confirmation
proceedings, so that they apply only to the latter. One of these
provisions empowers the presiding magistrate to order a parent or
guardian to be present at confirmation proceedings where the accused
is a juvenile. Another provision requires the presiding magistrate
to ensure that an accused is in his or her sound and sober senses
during confirmation proceedings. There are also provisions for securing
the attendance of witnesses at confirmation proceedings (however,
the provision excluding the public from confirmation proceedings
will not be re-enacted, with the result that such proceedings will
be conducted in open court).
Clause
8
This clause seeks to insert a new section (115A) in Part VIII that
is designed to compensate for certain advantages of the preparatory
examination procedure which, as discussed above, will be abolished.
These advantages were, firstly, that preparatory examinations were
often held when the evidence was still fresh, that is, not long
after the investigation of the case by the police was completed;
secondly, that the evidence led at preparatory examinations could,
under certain conditions, be admissible at a subsequent trial where
the witness who originally gave it was no longer available. The
new section 115A provides a procedure whereby the prosecution is
enabled to verify the depositions of witnesses obtained at the early
stages of an investigation of an offence, so that such depositions
can be used later at the trial in the event that the witnesses who
gave it are no longer available to give the evidence personally.
This new provision will also go some way towards resolving the problem
of securing the admission of evidence by expert witnesses at a trial.
Many of these experts (such as pathologists) have now to be invited
from abroad, and their attendance on the trial day is therefore
highly problematic. The verification procedure provided under the
new section 115A will enable the evidence of such experts to be
tested by the defence in the presence of a magistrate before the
day of the actual trial.
The new section
115B also inserted by this clause provides that the record of verification
proceedings under section 115A, as well as the record of confirmation
proceedings under section 113, will be admissible as evidence on
its mere production before any court.
Clauses
9 and 27
These clauses seek to repeal and replace the existing bail provisions
of the principal Act by other provisions which comprehensively codify
and reform the existing law on the granting and withholding of bail
by the courts. The circumstances under which the law recognises
that it is or is not in the interests of justice to release on bail
an accused person have been canvassed by the courts on many occasions
in the past. It is now desirable to spell out these circumstances
clearly for the benefit of judicial officers, prosecutors, defence
counsel and the accused, and to make reforms where necessary.
The bail regime
as codified and modified by these clauses specifies the broad grounds
on which the refusal to grant bail may justified in the interests
of justice (section 117(2)). Section 117(3) sets out the considerations
to be taken into account by a court where a prosecutor argues that
bail should be denied on the grounds that:
· the
accused, if released, is likely to endanger the safety of the public
or any particular person, or commit an offence referred to in the
First Schedule (117(3)(a));
- the accused,
if released, is likely not to stand his or her trial or appear
to receive sentence (117(3)(b));
- the accused,
if released, is likely to attempt to influence or intimidate witnesses
or to conceal or destroy evidence (117(3)(c));
- the accused,
if released, is likely to undermine or jeopardise the objectives
or proper functioning of the criminal justice system, including
the bail system (117(3)(d))
- the release
of the accused will likely disturb the public order or undermine
public peace or security (117(3)(e)).
In taking into
account the aforementioned considerations, the court is enjoined
to weigh the interests of justice against the right of the accused
to his or her personal freedom (117(4)).
Even where
the prosecution does not oppose the granting of bail, the court
has the duty to weigh up the personal interests of the accused against
the interests of justice (117(5)).
Where the accused
is charged with any of the very serious offences specified in the
Third Schedule, then the onus is on the accused to satisfy the court
that it is the interests of justice for him or her to be released
on bail. The Third Schedule is divided into two Parts, relating
to serious crimes of a higher and lesser gravity respectively. In
a case where the accused is charged with a crime of the first category,
he or she must satisfy the court that there are exceptional circumstances
which in the interests of justice permit his or her release (117(6)).
The new section
117A re-enacts section 117 of the principal Act (presently titled
“Application for bail”) with the addition of provisions
which elaborate upon the conduct of the bail proceedings themselves.
It codifies the procedure which already prevails, namely that the
rule against disclosure of previous convictions does not apply to
bail proceedings as it applies to trials, and the accused may not
(except with the consent of the Attorney-General) have access to
any information, record or document which is contained in a police
docket. The record of the bail proceedings will form part of the
record of the trial (except for any part of the record of the bail
proceedings relating to previous convictions). Moreover, if the
accused elects to testify during bail proceedings, his or her testimony
can be used against him or her at the subsequent trial, and he or
she must be warned by the judicial officer accordingly.
Clauses
10 and 12
The amendments sought by these clauses are consequential to the
one made by clause 3.
Clause
11
At present, the proviso to section 120 (“Excessive bail not
to be required”) requires that a court should not demand “excessive
bail”. The amendment sought by this clause will put a duty
on the courts to ensure that amount or terms of bail are such as
to deter an accused from evading his or her trial or not appearing
to receive sentence, where such a possibility is not too remote.
Accordingly, bail fixed in those circumstances will not be deemed
to be “excessive”.
Clauses
12, 13, 14, 15 and 16
The amendments sought by these clauses are consequential to the
abolition of the preparatory examination procedure.
Clause
17
Generally, in criminal proceedings, a husband or wife is not competent
to give evidence for the prosecution against the other spouse without
the latter’s consent. Section 247 of the Act specifies certain
types of cases to which this rule does not apply, that is to say,
it specifies certain offences in the prosecution of which a spouse
can be compelled to give evidence against the other spouse.
The Criminal
Law (Codification and Reform) Act [Chapter 9:23] (“the
Criminal Law Code”) that was passed by Parliament last year
comprehensively codified or abolished common law offences, and replaced
or repealed certain statutory offences. Consequently, there is a
need to amend section 247 of the principal Act so that the names
of the offences there specified are the same as the names given
to those offences by the Criminal Law Code.
Clause
18
This clause seeks to replace section 255 of the principal Act, which
provided, among other things, for the admissibility of the evidence
of any witness given at a preparatory examination, in circumstances
where the witness was no longer available to give evidence personally
at the subsequent trial of the accused. Since it is proposed to
formally abolish the preparatory examination procedure, the new
section 255 will permit the depositions of absent witnesses to be
admitted if the depositions were verified under the new section
115A (see clause 8 above). The depositions of absent witnesses that
were not so verified may still be admitted, but only at the discretion
of the court (as is presently the case under section 255 (3) of
the principal Act with respect to the depositions of absent witnesses
generally).
Clauses
19, 20, 21 and 22
The amendments sought by these clauses are consequential to the
abolition of the preparatory examination procedure.
Clause
23
The amendments sought by this clause was recommended by the Task
Force on Child Sexual Abuse established by the Ministry of Health.
At present,
affidavit evidence in the form of a Medical Report Form completed
by a medical practitioner is admissible as evidence at a criminal
trial on its mere production by the prosecutor; in other words,
if the contents of the Form are undisputed, it is not necessary
to summon to court the medical practitioner who completed the Form
(“the deponent medical practitioner”) in order for him
or her to give formal evidence on matters referred to in the Form.
(In cases where the evidence contained in such Medical Report Forms
is challenged, the court has a discretion to call the deponent medical
practitioner so that his or her testimony can be heard in court.
The court may do so of its own motion or at the request of the prosecutor
or the accused).
The Task Force
on Child Sexual Abuse requested that suitably qualified nurses should
also be enabled to complete Medical Report Forms in relation to
victims of child sexual abuse who have been examined or treated
by such nurses. This is because medical practitioners are not always
available at Rural and District hospitals.
The effect of this clause is to enable suitably qualified nurses
to complete Medical Report Forms in relation to all victims of sexual
crimes who have been examined or treated by them, in addition to
child victims of sexual crimes.
Clause
24
The amendment sought by this clause is consequential to the abolition
of the preparatory examination procedure.
Clause 25
Under section 17 of the Sexual
Offences Act a court that convicts a person of a sexual offence
has the power to order that the convicted person be tested for HIV
infection. Any such test is compulsory, and reasonable force may
be used to take any sample for testing. The results of the test
have a bearing on the sentence imposable upon the convicted person,
who is liable to a heavier penalty if the results are positive.
Section 17
of the Sexual Offences Act was later incorporated, with some changes,
as section 302A of the principal Act by the Criminal Law (Codification
and Reform) Act [Chapter 9:23] (Act No. 23 of 2004). The
principal change is that the court convicting a person of a sexual
offence must in every such case order that the
convicted person be tested for HIV infection.
The implementation
of this mandatory provision is difficult for the reasons stated
under clause 23 above, namely that because medical practitioners
are not always available at Rural and District hospitals. And although
the Minister responsible for health may, under section 302A(1),
“designate” persons other than medical practitioners
to conduct HIV tests, it was felt desirable in the interests of
clarity that suitably qualified nurses should be specifically mentioned
in section 302A of the principal Act as being competent to conduct
these tests.
Clause
26
The amendment sought by this clause is consequential to the abolition
of the preparatory examination procedure.
Clause 27
and Schedule
This clause and its related Schedule effect minor amendments to
the principal Act, especially those amendments required by the abolition
of the preparatory examination procedure.
Clause
29
The individual paragraphs of this clause amend the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (No. 23 of
2004) ("the Code") in the following respects:
- this paragraph
seeks to correct an error in section 1 of the Code;
- this paragraph
seeks to correct an error in section 16 of the Code;
- where a mandatory
penalty is involved, there must be a power for a court to find
"special circumstances" in cases that warrant a lower
penalty than the mandatory one; also, the mandatory penalty should
not extend to cases where the crime is unfinalised. Section 80
of the Code ("Sentence for certain crimes where accused is
infected with HIV") is wanting in both respects, and this
paragraph seeks to improve it accordingly;
- the conduct
and the mental element required to be proved for the "concurrent"
charges mentioned in section 114(7)(c) of the Code are the same,
that is:
- Stock
theft involving the acquisition of livestock from another
person without reasonable cause for believing that the livestock
belonged to that person and receiving stolen
property knowing it to have been stolen.
- Stock
theft involving the possession of livestock in circumstances
giving rise to the suspicion that it was stolen and
possessing property reasonably suspected of being stolen.
Since
this renders an accused person liable to double punishment, this
paragraph seeks to amend section 114(7)(c) so that it will refer
to "alternative" charges only.
- this
paragraph seeks to employ the phrase "potentially prejudicial",
which is already defined in section 135 of the Code, in the description
of the crime of fraud in section 136;
- the present
definition of "cannabis plant" in section 155 of the
Code is too narrow. It is sought to improve it along the lines
of the definition of "Indian hemp" contained in the
present Dangerous Drugs Act;
- consequentially
to paragraph (f), the reference to "other than cannabis"
in section 156(2) should be deleted and substituted by "other
than any cannabis plant, prepared cannabis, or cannabis resin";
also, for the same of consistency of wording with section 114(3)
of the Code, the phrase "special circumstances in the particular
case" in section 156(1)(i) and 156(3) should be replaced
by "special circumstances peculiar to the case";
- the phrase
"benefit or advantage" in section 170(2)(a) and (b)
should be deleted in favour of the phrase "gift or consideration"
for the sake of consistency with the rest of Chapter IX of the
Code. The phrase "gift or consideration" is used in
section 170(1) of the Code, and the word "consideration"
is defined in section 160;
- "threats"
to commit the offences of "indicating witches and wizards"
and "hijacking" should be deleted from section 186(3)
of the Code because threatening to do either of these things already
constitutes a crime under section 99 of 151 of the Code;
- the amendment
sought by this paragraph corrects an error in section 191 of the
Code;
- this paragraph
and paragraph (l) seek to make clear that persons who render assistance
to the accomplices of a crime rather than to the actual perpetrators
should be also liable as accessories to the crime;
- the defence
of ignorance or mistake of the law should not extend to "advice"
by judicial officers. Judicial officers do not give "advice"
on the law but render judgments interpreting it.
- the amendment
sought by this paragraph corrects an error in section 236 of the
Code;
- this paragraph
modifies section 253(1)(a) and (b) of the Code to bring it more
into line with the existing common law.
Clause
30
The Legal Practitioners Act [Chapter 27:07] was amended
by the General Laws
Amendment Act, 2005 (No. 6 of 2005) to enable persons employed
as legal practitioners by the Zimbabwe Revenue Authority to have
the right of audience before the Fiscal Appeal Court and Special
Court for Income Tax Appeals. It is proposed to extend this right
to any other court in any civil and (if authorised by the Attorney-General
under section 6 of the Criminal Procedure and Evidence Act [Chapter
9:07]) criminal proceedings to which the Authority is a party
or that involve any of the Acts specified in the First Schedule
to the Revenue Authority Act.
PRESENTED
BY THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
BILL
To amend the Criminal Procedure and Evidence
Act [Chapter 8:07], the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (No. 23 of 2004) and section
92 of the Legal Practitioners Act [Chapter 27:07]; and
to provide for matters connected therewith or incidental thereto.
ENACTED by
the President and the Parliament of Zimbabwe.
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