- November 29, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL PROCEDURE – AUTOMATIC REVIEW – QUESTIONING OF AN ACCUSED IN TERMS OF S 112(1)(B) OF THE CPA – COURT NOT PERMITTED TO DRAW ANY INFERENCES FROM ACCUSED’S ANSWERS
The accused person was convicted of assault with intent to do grievous bodily harm and assault. The charges were taken together for the purpose of sentence, and he was sentenced to three years’ imprisonment. The case was sent with two typed J15 charge sheets and two handwritten J15 charge sheets. One of the handwritten charge sheets reflects the charge as assault by threat. This charge was however deleted. The plea on this charge sheet reflects the plea as guilty on ‘count 1 and 2’. The other handwritten J15 charge sheet reflects assault with intent to do grievous bodily harm. No plea was entered. One of the typed J15 charge sheets only reflects the name and address of the accused with no charge and plea whilst the other typed one reflects the charge of assault with intent to do grievous bodily harm with no particulars of the accused.
On perusal of the review, it was clear that the magistrate did not distinguish between the two charges and dealt with them simultaneously. The magistrate also did not direct any question to be satisfied that the charges do not constitute a duplication of convictions. In addition, no question was directed to establish the intention of the accused.
A query was directed the magistrate to clarify on what charges the accused was convicted of because the charge of assault by threat was deleted, and the handwritten J15 charge sheets were incomplete, and for the magistrate to correct the confusion on the review cover sheet and J15 Charge sheets. The review coversheet at that stage only reflected a conviction on count 1 assault with intent to do grievous bodily harm.
The J15 charge sheets and the review cover sheet were in the meantime corrected. The case was resubmitted for review, and it became clear that the accused was convicted and sentenced on assault with intent to do grievous bodily harm and assault by threat. The magistrate was further queried that:
- ‘Now that the magistrate clarified the previous query, in the absence of questions to clarify whether the assault and threat did not happen at the same time and place, how was the magistrate satisfied that it was not a duplication of convictions?
- In the absence of a determination of the intention of the accused, how is it justified to convict the accused of assault with intent to do grievous bodily harm where he only slapped the complainant twice in the face?’
The magistrate responded as follows:
- ‘The accused went to look for the complainant, found her, slapped her in the face and took her home where he threatened to her that he want to kill her. The threat to kill her happened at home after she told him, she would report the matter to the police, whereafter he locked her inside the house. My opinion is that these happened at a different time and therefore it is not a duplication of conviction.
- In my opinion the Accused had an intention to do grievous bodily harm, through to a lesser degree as he had slapped her twice in the face, as she was pregnant. Had he only pushed her or pulled her or slap her once, I would have said its common assault. The accused went with the intention to reprimand the complainant, by slapping her in the face.
- I would further appreciate guidance from the Honourable Justice in this regard.’ (sic)
Per JANUARY J (LIEBENBERG J concurring):
‘[9] It is clear that the magistrate inferred from the response of the accused person that he had the intention to assault the complainant with the intention to do grievous bodily harm. The questioning of an accused in terms of s 112(1)(b) of the CPA was dealt with in S v Shuuveni CR 10/2014) [2014] NAHCNLD 21(20 March 2014). The accused in that case was charged with housebreaking with intent to steal and theft. The magistrate failed to enquire from the accused what his intention was at the time of the breaking in. The magistrate held the view that it could be inferred from his answer as to what he intended doing with the stolen property, that he had the intention of stealing.
[10] The magistrate, in this case, did not pose a single question to establish the intention. Further, the answer provided in response on why the accused pleaded guilty does not clarify the issue of whether the charges are a duplication of convictions or not. In our view, the answer indicates that the assault and uttering of the threat was one continuous action. A further misdirection is the manner in which the magistrate dealt with the two different charges by not applying s 112(1)(b) distinctly in relation to each of the charges. The simultaneous questioning of the accused in terms of s 112(1)(b) was, in our view, not proper. It led to facts being vague and intertwined as it happened in this case.
[11] When an accused is questioned in terms of s 112(1)(b) of the CPA, the court must ask questions which cover all the elements of the offence to which the accused pleaded guilty. The court is not permitted to draw any inference from the accused’s answers when all the elements were not properly covered.
[12] The court’s function is not to evaluate the answers as if it were weighing evidence, or to judge their truthfulness or plausibility. It is simply to interpret them to see whether they substantiate the plea. It relates to what the accused person has said, not what the court thinks of it.
[13] The magistrate misdirected himself when drawing inferences from the accused’s answers, from which he concluded that the accused had the intention to permanently deprive the owner from his property. Further, the simultaneous questioning on separate charges is another misdirection
As a result, the conviction and sentence were set aside, and the matter was remitted to the same court in terms of section 312(1) of Act 51 of 1977 with the direction to further question the accused in terms of section 112(1)(b) of the Act. In the event of a conviction, regard must be had to the sentence already served by the accused.
S v Amib (CR 103-2022) [2022] NAHCMD 647 (29 November 2022)