Report on Court Proceedings: Rotten Row Courts
Assignment: Report on Court Proceedings
Introduction
On the 7th of April 2017, as the University of Zimbabwe Forensic Science Crime Scene Investigation class, we visited the Rotten Row Magistrate Court and got a chance to sit in on trials which were carried out that day. The details of each of the cases are as follows.
Case 1 : Alleged rape
Accused : Daniel of Epworth
The accused was initially in remand and then appeared in court. During the legal trial, the State was prosecuting but its witnesses reported that they were sick so they failed to come to court. The trial was then postponed to Wednesday the following week and the accused was sent back to remand until scheduled trial date.
Case 2 : Alleged rape
Accused : Jonathan Choma
Victim : Charmaine Choma
In the case of State V Jonathan Choma, at the scheduled trial time, the witnesses (victim’s mother and aunt) had not yet arrived at court. The judge adjourned the court and trial was set to resume after an hour. The delay which was then encountered was because the State asked that time is spared to familiarize the victim. The accused is related to the victim and both the witnesses (the victim’s mother and the victim’s aunt). To the victim, he is the father; to the victim’s mother, he is the spouse (not clear if they were still together or if they had separated) and to the victim’s aunt, he is the brother. Charmaine was said to be under custody of the mother and the aunt.
When trial was resumed, the aunt was asked to leave the courtroom until the time she would be called upon as a witness. This was done to avoid interference during the trial. The victim was 5years old deeming her a minor in legal matters and because of this, the Chief in examination was carried out in the Victim Friendly Unit. An expert in child psychology had to be the communication link between the State prosecutor and the victim as she could get the child to be comfortable by playing with toys with her. The victim and the expert were in a separate room with paintings on the walls and had a friendly vibe.
The State prosecutor would ask the questions, during the examination-in –chief, through a microphone and the expert would hear the questions through headphones then try to interpret the questions for the victim to have a better understanding of the questions. Since the victim in question was a minor, she could not make an oath to tell the truth as she could not have the mental appreciation of what it means so instead, the expert just emphasized in telling the minor that she was a good child and asked her not to lie. There was a television in the courtroom broadcasting from a camera set in the separate room where the victim was.
When the victim was asked for her father’s name, she did not respond but managed to say that he was outside. She admitted to knowing where she was and why she was there. The prosecutor asked if she liked her father and the victim shook her head but then nodded later on. Getting the victim to talk was a struggle and the only responses she was giving were contradictory head gestures. The Magistrate said that use of sign language could not be allowed as the interpretation would be ambiguous. The draw back in the victim’s cooperation had her being deemed unstable and court was adjourned and set to resume at 11am. In light of the medical report saying that no penetration transpired and the victim being unstable enough to not appreciate the questions which were being asked, the accused was released from remand.
In my personal opinion and inference, this was probably a case of family grudges. In the Law Code under section 65, the premises for rape are of intentionally having sexual intercourse or anal sexual intercourse when the female has not consented to it. The Law also says that boys and girls under the age of 12 are irrebuttably presumed to lack the capacity to consent to sexual intercourse. Aggravating factors of the crime include age of victim, whether or not the perpetrator is related to the victim and age of offender. Given this information, if the accused had been convicted of this crime, he would have faced serious jail time even life imprisonment.
The physical evidence, however, proved otherwise. Contrary to the victim’s aunt’s accusations, the medical report showed that there was no penetration, rendering a trial for rape, specifically, useless. The fact that there were no signs of physically inflicted violence weakened the case. The victim’s instability made it hard to convict the accused based on sign language gestures. From another point of view, one may suggest that a crime of indecent assault was committed but without proof, the defence would have the upper hand. Without concrete physical evidence and only relying on claims made, the State could not have managed to obtain a conviction because it has the onus to prove beyond any reasonable doubt that indeed a crime was committed and in this particular case reasonable doubt was there.
Case 3 : Assault
(Crimes against persons, State not involved)
According to the Criminal Law Codification and Reform Act, assault is premised by intention to cause bodily harm to another or realising that there is a real risk that bodily harm will result. It is also premised by making threats whether by use of words or gestures to cause bodily harm to another person intending to inspire in the threatened person a reasonable fear or belief that force will immediately be used against him or her.
In this particular case, the accused allegedly assaulted the victim by use of words which threatened the victim and inspired fear. This incident was said to have transpired in the Master of High Court. A witness that was being cross examined gave inconsistent and contradictory statements. When he was asked what was said between the accused and the victim, he claimed to have been too far for him to hear. At a later stage during the examination he claimed to have heard the accused saying that she was going to hit the victim. This contradictory nature of answering the questions made the witness less reliable in the testimony was giving. When asked a question, he would remain quiet for a while with a calculative facial expression as if he was cooking up an answer.
At a particular point, he got very emotional and was no longer answering the questions in a calm tone. His frustrations were questionable as it appeared as though he had personal interests in the case. He was biased in responding to the cross examination questions and that led to inconsistency. An element of lying could be picked up. Cross examination is led by the lawyer from the other party. Its purpose is to weaken the other party’s case by exposing the inaccuracy in it or contradictions. This was executed impressively since honesty was not a big part of the witness’s testimony. During re-examination, the witness’s lawyer led with the purpose to revive the weakened case.
Remand Procedures
Remand is requested by the State when it is not ready to bring the case to trial and the main reason relied upon on many occasions is that the police would still be running investigation. If the Court is satisfied that there is reasonable doubt that the crime was committed, it can remand the accused on either custody or out on bail. In the case of Attorney General V Blumears and another 1991(1) ZLR 118 (S), the Court laid down the requirement for remand. Generally, it says that the State must allege facts that justify reasonable suspicion that the accused committed the offense.
Case 1 : FRAUD
According to the Criminal Law Code section 136, fraud is premised by making misrepresentations intending to deceive another person or realising that there is a real risk or possibility of deceiving another person.
In this case, three people went through trial for fraud of $15 964. This was achieved through 2 bank transfers from Borrowdale Primary School. Bail was granted at $200. The accused were placed under house arrest at their submitted addresses. They were ordered to report to the Central Intelligence Department every Friday between 6am and 6pm.
Case 2 : Fraud
In this case, an accused was tried for fraud. Bail was granted at $100. The accused was warned not to interfere with the ongoing investigations. Bail was granted because the Court was satisfied that there was reasonable doubt that the crime was committed.
Case 3 : Fraud
Witness : Police Officer deeming accused not liable for bail
In this case, an accused under remand for fraud of $1 070 had applied for bail but he faced resistance from the arresting Officer. The Officer claimed that the accused was not liable for bail because of some reasons of concern. Accomplices of the offense were said to be three and not yet in custody. One by the name Patrick had not even been carded yet meaning that the police had not yet decided whether or not to arrest him.
One of the detective’s reasons for denying the accused bail was that he may team up with the accomplices which would be interfering with the witnesses. The detective claimed that they had the mobile contact umbers of the accomplices and would go through network subscribers in order to track them. Another claim was made that there were 12 more witnesses that were to be located. The evidence presented was of invoices signed by the accused and 2 witnesses that had reported, one from Mutoko and another from Beitbridge.
During cross examination, the lawyer from the other party raised that according to section 50 of the Zimbabwe Constitution, bail is a right. Also he suggested that the existence of the other 12 witnesses was simply a case of hearsay. The detective was seen fondling and flipping through pages of his affidavit which had been hidden in the pages of a catalogue and was asked to put it away. The detective was asked if the accused had tried to resist arrest or tried to flee in transit and he said that he had not. This weakened the claim made by the Officer that the accused was not liable for bail since it was quite evident that he had been cooperative all along.
The accused was then granted bail.
CONCLUSION
The trials witnessed had some degree of diversity and appreciation of the court proceedings was obtained. We managed to observe the examination-in-chief procedure for cases that were different in their nature, cross-examination and the challenges associated with it and also re-examination procedure.
