HIGH COURT OF ZIMBABWE
HARARE, 1stJune 2006
BHUNU J: The accused was convicted on his own plea of guilty on a charge of house breaking with intent to commit indecent assault and indecent assault.
The agreed facts were that on the 1stday of May 2006 the accused forcibly opened the door to a room in which the 13 year old complainant was sleeping with her four younger siblings. He sneaked into her blankets and proceeded to caress her private parts while trying to remove her under pants.
The complainant screamed whereupon the accused bolted but was later arrested the following day at his residence.
When he was arraigned before the trial magistrate he pleaded guilty to the charge of housebreaking with intent to commit indecent assault and indecent assault. The trial magistrate then proceeded to canvass the essential elements of the offence with the accused as follows:-
“Q. Is it correct that on the mentioned date you forcibly opened the door to complainant’s rom to create entry?
- Having opened the door you entered into the house?
- What did you intend to do in the house?
A. I wanted to rape the complainant because my wife had denied me sexual intercourse for three weeks. (my emphasis)
Q. Inside the house you caressed the complainant and touched her vagina and buttocks?
Q. You however, appreciated that such conduct was indecent?
Q. You admit that complainant did not consent to the caressing and touching of her buttocks and vagina?
Q. You knew it was unlawful?
Q. Any right to do so?
Q. Any defence to offer?
Q. Is your admission of guilty an admission of all the facts and elements that constitute this offence?
Verdict – Guilty as charged.”
The trial magistrate must be commended for concisely and exhaustively canvassing the essential elements of the offence with due diligence and commitment to duty. The handwriting is lucid and clearly legible.
Having said that I regret to say that the trial magistrate fell into grave error when he proceeded to convict the accused of the lesser charge of housebreaking with intent to commit indecent assault and indecent assault in circumstances where the accused was freely and voluntary confessing to having committed the more serious charge of housebreaking with intent to rape and indecent assault.
Undoubtedly it is a misdirection and a serious miscarriage of justice to convict an accused person of a minor offence in circumstances where he is pleading guilty to a more serious charge.
Upon realising that the accused was in fact pleading guilty to a more serious charge than the one charged the trial court ought to have stopped the proceedings and referred the matter to the High Court for review in terms of section 25 as read with sections 27 and 29 of the High Court Act [Chapter 7:06].
The accused having been convicted and sentenced on the basis of a lesser charge in circumstances where he was confessing guilty to a more serious charge I am unable to certify these proceedings as being accordance with real and substantial justice.
I accordingly withhold my certificate.
MAKONI J, agrees.............................................