The Director Of Public Prosecutions v Joubert Henry Sithole (Appeal No. 67 of 1969) [1970] ZMCA 17 (14 January 1970)

I THE DIRECTOR OF PUBLIC PROSECUTIONS v JOUBERT HENRY SITHOLE (1970) ZR 44 (CA) I COURT OF APPEAL 20 PICKETT JA, WHELAN J AND MUWO AGJ 14th JANUARY 1970 Appeal No. 67 of 1969 25 Flynote Criminal law and procedure - Appeals - Fresh evidence - Proper procedure when admitting on appeal fresh evidence not given at trial - Criminal Procedure Code, s. 305 (1). Headnote This was an appeal by the Director of Public Prosecutions against the judgment of the Chief Justice on the ground that the Chief Justice 30 erred in allowing fresh evidence to be taken on appeal without following the proper procedure. At the hearings before the Chief Justice no objections were raised by the state advocates who appeared on behalf of the State as regards the procedure adopted. The present appeal was dismissed on the ground that it was too late in the circumstances to object. However 35 the court proceeded to emphasise the proper procedure to be followed. ■ ■ Held: (i) An affidavit setting out the additional evidence sought to be adduced should be filed and a copy served on the Attorney-General who may be at liberty within one week of the receipt 40 of this copy to make such observations as may be material to the exercise of ■ the discretion of the court on making an order under s. 305 (1) of the Criminal Procedure Code. (ii) In dealing with an appeal from the lower court the appellate court, if it thinks additional evidence is necessary, should 45 record its reasons and may either take such evidence itself or direct it to be taken by the lower court (Criminal Procedure Code, s. 305 (1)). ■ 1970 ZR p45 PICKETT JA Cases cited: (1) Erasmus v The King, 5 NRLR 136. (2) Joubert v The King, 4 NRLR 117. Legislation referred to: I Criminal Procedure Code, 1965 (Cap. 7), s. 305 (1). 5 Judgment Pickett JA: delivered the judgment of the court. This is an appeal by the Director of Public Prosecutions against a judgment of the learned Chief Justice wherein in the Chief Justice allowed in additional evidence and then I quashed the conviction and sentence imposed by the lower court. 10 The grounds of appeal were finally two in number, since one ground was withdrawn by the learned Director of Public Prosecutions and another one, namely, that the judgment was against the weight of evidence, is not really a ground of appeal at all, as has so often been pointed out by this court. So the two grounds argued by the Director of Public 15 Prosecutions were first of all that the learned judge was wrong in law by allowing additional evidence on appeal as such evidence was available at the trial, and secondly, that the learned judge was wrong in law in not following the proper procedure before allowing additional evidence. There is no doubt of course that leave to call additional evidence 20 was given by Magnus, J, and a note of what happened appears on p. 69 of the record in the following terms: ■ ■ "A (1)'s statement treated as application to call fresh evidence. As Popodopolous was overseas on the date of the incident, he could not with reasonable diligence have been called. Subpoena 25 was issued to Mr Popodopolous to attend this court on Friday 5th September, 1969 at 9.30 a.m. to give evidence on behalf of A (1). A (1)'s appeal adjourned to Friday 5th September, 1969 at 9.30 a.m." ■ There can be no doubt that in acting in this way, Magnus, J, did 30 not carry out the correct procedure with regard to the calling of fresh evidence on appeal. This procedure was laid down in the cases of Erasmus v The King (1) and Joubert v The King (2). Briefly, this procedure requires that an affidavit setting out the further evidence sought to be adduced shall be filed and a copy thereof 35 served on the Attorney-General, and that the Attorney-General may be at liberty within one week of the receipt of this copy affidavit to make such observations thereon as may be material to the exercise of the discretion of the court on making an order under s. 305 of the Criminal Procedure Code. Section 305 (1) of the Criminal Procedure Code is in the 40 following terms: ■ ■ "In dealing with an appeal from a court below, the appellate court, if it thinks additional evidence is necessary, ■ ■ shall record its reasons, and may either take such evidence itself or direct it to be taken by the court below." 45 1970 ZR p46 I ■ PICKETT JA Now there is nothing whatsoever on the record, as I pointed out to the Director of Public Prosecutions, to show that the state advocate appearing on behalf of the State, drew the learned judge's attention to the correct procedure or indeed, raised any objection whatsoever 5 to the granting of leave to call the additional evidence. Furthermore, it cannot be said that Magnus, J, did not give reasons for his granting of leave to admit additional evidence, since, as I have already quoted, the record contains the words: "As Popodopolous was overseas on the date of the incident, he could not with reasonable deligence have been 10 called." By "incident" one must presume that he means the date of the hearing in the magistrate's court. Once again at the resumed hearing, before the learned Chief Justice, another state advocate appeared on behalf of the respondent and again made no objection whatever to the procedure adopted by Magnus, J, 15 and indeed he stated, according to the record: ■ "Appellant has been given leave to call further evidence. His witness is not present. Service has not been operated. Appellant obtained leave to call the witness. He should I be given the chance. Adjourned 14 days for service to be attempted." 20 At a later date, namely, the 19th September, 1969, the record contains the following entry "Appearance as before. Williams: Told Superintendent to bring witness to court. He has been seen. Adjourned to 2.30 p.m. I 2.30 p.m. Appearances as before." 25 This record shows that, far from objecting to the procedure which had been adopted, the learned state advocate actively assisted in getting the additional witness to court. On the afternoon of the 19th September, 1969, Popodopolous appeared and gave his evidence I in chief and was then cross - examined by Mr Williams, the state advocate. 30 In these circumstances we do not feel that the Director of Public Prosecutions can properly complain at this late stage about the further evidence of Mr Popodopolous being admitted. We do, of course, emphatically express the view that the correct procedure, as described in this judgment, shall be followed in all future 35 cases when the question of additional evidence, not given at the trial being admitted, is being considered by an appeal court. We find there is no merit in this appeal and it is accordingly dismissed. Appeal dismissed ■