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Director of Public Prosecutions v Sikatema & 5 Others (S.C.Z. Judgment 27 of 1987)  ZMSC 27 (19 October 1987);
THE DIRECTOR OF PUBLIC PROSECUTIONS v DERRICK MUHAU SIKATEMA & 5 OTHERS (1987) Z.R. 90 (S.C.)
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.20TH OCTOBER ,1987.(S.C.Z. JUDGMENT NO. 27 OF 1987)
|Criminal Law and Procedure - Adjournment - Application by Prosecution - Factors to be taken into account in exercise of court's discretion.
Criminal Law and procedure - Trial - Verdict - Failure to enter before passing order of conviction or acquittal - Whether a nullity.
|The respondents were charged with aggravated robbery. After the State had called a number of witnesses and had only two witnesses remaining, the High Court commissioner acquitted the respondents because the state advocate prosecuting the case did not attend at the continued hearing. The D.P.P. appealed.
(i)Before a conviction or an acquittal can be recorded there must be a verdict which must be returned by the trial court. Therefore, an acquittal in the absence of such a verdict is a nullity. (D.P.P. v Siwale followed).
(ii)The discretion which the courts enjoy in matters of granting or refusing to grant adjournments must be exercised in such a way that the broader interests of justice are served. (D.P.P. v Whitehead followed).
(1)D.P.P. v Siwale (1981) Z.R. 71
(2)D.P.P. v Whitehead (1977) Z.R. 181
For the appellant:N. Sivakumaran, Assistant Senior State Advocate,
For the respondents:C. P. Sakala, Acting Director of Legal Aid.
|NGULUBE, D.C.J.: delivered the judgment of the court.
This is an appeal brought by the Director of Public Prosecutions in terms of section 12(3) of Cap. 52. The Director has appealed following upon the decision by a High Court commissioner when, after the State had called a number of witnesses and had only two witnesses remaining, the respondents were acquitted because the State advocate prosecuting the case did not attend at the continued hearing. The history of the case shows that the respondents were charged on a count of aggravated robbery. The particulars of which alleged that on 24th February, 1985, at Lusaka, jointly and whilst acting together and whilst armed with an offensive weapon, they did steal a motor vehicle from the complainant named in the charge. The trial commenced before the High Court commissioner and it was adjourned on various occasions for various reasons either at the instance of the prosecutor or at the instance of the court itself. It also so happened that meanwhile, the learned High Court commissioner was posted to Kitwe and had to make special arrangements to travel to Lusaka to complete the hearing of the various cases which were pending before him while he was at Lusaka. In this particular case, the trial was on a previous occasion not adjourned to any particular day and when the court was able to travel to Lusaka a notice of hearing was dispatched to the parties for the trial to resume on the 14th of September, 1987. The learned state advocate who was seized of the matter then wrote a letter to the court in which he sought an adjournment on the grounds that on that day he would be away in Livingstone to attend to other court work. On the day appointed for the resumption of the trial, a different state advocate attended and applied for an adjournment on behalf of the state advocate who had gone to Livingstone. It transpired also that the State Advocate in Livingstone was appearing before a Subordinate court. Quite clearly, the learned trial commissioner took offence at the apparent discourtesy shown to his court which was a superior court in relation to the subordinate court and, after
expressing his displeasure against the conduct of the state advocate who had gone to Livingstone, he considered that the state was not prepared to prosecute the case and thereupon dismissed the charge and acquitted the six respondents.
the better expression would be that the acquittal itself, rather than the trial, is a nullity. We find that in this particular case the acquittal of the respondents was a nullity and being the case, we allow the Director's appeal, we set aside the order of acquittal and direct that the trial shall continue before the same learned High Court Commissioner and that the prosecution will be allowed to call their remaining witnesses and the trial finalised in the normal manner.