LEGAL MATTERS: Dissecting cellphone judgment

When judges or magistrates write judgments after presiding over trials, what exactly do they look at?
Essentially, there are two aspects. First, they examine the facts and then the legal issues at play. When the judgment is delivered, it will contain the reasons for the judge’s decision (the ratio desidendi) and other things not part of the reasons.
These other things are statements and/or remarks that are inevitable or incidental to the judgment and which, for all intents and purposes, are unavoidable. They are made, if you want, in passing.
At law, such statements are called orbiter dictum. They are not binding in nature but are merely persuasive. I shall revert to the ratio desindendi and the orbiter dictum later.
To enable a judge to reach a sound decision, it is inevitable that the facts have to be fully ventilated.
Included in the facts are evidential issues which may be oral evidence adduced in court by the complainant and his or her witnesses. Other evidence may be documents or any other things or objects that may have been used in the commission of the offence in question.
At the same time, the accused is also afforded a chance to present his own side of the story and is correspondingly allowed to call his own witnesses to corroborate or support his version of events. As it is sometimes said, there are three sides to every story: your side, my side and the truth.
The judge will, therefore, be striving to arrive at the truth.
After scrupulously examining all the facts and the evidence, the next stage is to determine the legal aspect of the matter.
The charges that would have been preferred by the police upon the arrest of the accused person will be the starting point.
In our law, every criminal offence has what are called essential elements. For a conviction to attach, all the essential elements must be present.
The judge would have to ask himself the question, “according to the facts and the evidence in this case, are all the essential elements of the offence present?” If the answer is positive, then the accused is guilty as charged. If, on the other hand, the answer is negative, another question arises; “is the accused, therefore, not guilty or is he in fact guilty of another offence which is supported by the evidence presented in court?”
This second rung of questions occurs quite frequently in murder trials because one key essential element of a murder charge is whether the accused had the requisite intention of causing the death of the deceased. Here, the events immediately prior to the causing of the death of the deceased are pertinent.
If it is shown that the accused actually prepared or planned to cause the death, then in all probability, the accused will be guilty of murder.
Take for instance, a person who laces another’s food or beverage with a poisonous substance and the victim consumes it resulting in death.
Surely it would be fanciful to think that such a person did not have the intention to kill.
The same might be said of armed robbers who approach a bank with the intention of robbing it but then end up exchanging gun fire with security personnel.
If one of the security persons is killed even by a bullet from his own colleague’s firearm, it would be the robbers who will be guilty of murder because they would have hatched and executed a dangerous plan which resulted in death.
So, as long as it is shown that the accused planned to cause the death or created a dangerous circumstance that then resulted in death, the accused is guilty of murder.
To illustrate the planning aspect, I rely on the below passage by former High Court Judge Simbi Mubako in the case of the State vs Dzaro 1996(2) ZLR 541, who quoted Justice Tredgold in R vs Tenganyika 1958 R & N 228 (FS):
“When a man draws a pistol from its holster, jerks a cartridge from the magazine into the chamber, points it at another and pulls the trigger, it would be artificial, to say the least of it, to hold that he had no intention to kill.”
Staying with the offence of murder, if during the trial, it emerges that in all probability, the accused lacked the intention to cause the death of the deceased, then the accused will most probably be guilty of culpable homicide, itself, a lesser offence than murder.
In its bare bones, culpable homicide may be described as accidental death.
If at the trial, the accused person is able to show that when he caused the death in question, he had not formed the requisite intention to kill, that is to say, the death was accidental rather than intentional, then he is not guilty of murder but culpable homicide of which he may be sentenced either to do time in jail or to perform community service work depending on the circumstances.
This is what occurred in the recent case of the State vs Fortunate Nsoro HH190/16, presided over by Justice Chitapi, which has come to be called “the cellphone judgement”.
In that case, although Nsoro, the accused, had initially been charged with murder, the court was satisfied that the events prior to and during the commission of the offence, pointed, in all probability, to a person who did not have the intention to cause death.
The charge was accordingly altered to one of culpable homicide to which she pleaded guilty.
What the court was only left with was to hear the prosecution’s address in aggravation and the accused’s lawyer’s submissions in mitigation.
During the course of the Nsoro judgement, the judge talked about the dispute that had arisen between the accused and the now deceased arising from a text message that the deceased had received on his cellular phone which he refused to divulge to Nsoro upon her demand.
The dispute became so heated to the extent that the deceased ended up severely assaulting Nsoro who was nevertheless able to escape to the kitchen from where she emerged armed with three knives.
The rest, as they say, is history.
For the purposes of this discussion, however, I wish to highlight that the ratio desidendi in the Nsoro judgement is the plea of guilty that was entered at the beginning of the trial.
The decision itself was the conviction on a charge of culpable homicide. Put differently for the sake of clarity, Fortunate Nsoro was convicted because she admitted to the charge.
In the judgement, reference is made to certain sections of the Constitution and to the fact that every person has a right to privacy of their communications.
This is an existing law.
In addition, the learned judge also counsels society to “learn to respect privacy of communications” and that “courts are flooded with cases where couples or spouses seek to prove wrongful conduct by the other using evidence in the form of messages retrieved from another spouse’s phone. Such evidence unless obtained with the consent of the owner of the phone would have been illegally obtained…”
Legally speaking, these remarks are technically not part of the reasons for the decision that the judge eventually reached. They may be a true exposition of the law but they are merely incidental to the reasons for the decision.
They are orbiter.
It is, therefore, not correct to say that the judge actually ruled that eavesdropping on another spouse’s cellular phone was illegal.
This right has always existed in our law. This is instructive.
In any case, what the judge said was an orbiter dictum. What the judge did was only to refer to the law as it is already laid down in the Constitution and not that the judge made a new law regarding snooping on another or spouse’s phone.
No.
I repeat and stress that the ruling that was made in that case was that Nsoko was guilty of culpable homicide and the reason for the conviction was that Nsoko had admitted to the charge. Period!
What also has to be understood is that eavesdropping on another’s cellular phone is not a criminal offence but an infringement of one’s privacy which right can be enforced in the appropriate court.