Why one of doctor’s attackers was not issued with a warrant of arrest and the matter had to be withdrawn before plea?

NIGEL Mugwagwa, one of the brothers who did not turn up in court for the commencement of trial in a matter where he and his younger brother are accused of attacking a medical doctor at a leisure spot, has sparked debate in social media circles.

A large number of readers of The Chronicle said Nigel should have been issued with a warrant of arrest for failing to appear in court. Many were left questioning why the matter was withdrawn before plea. Legal expert Dr Tanaka Muganyi explained why the matter was withdrawn before plea.

“The courts are there to provide a fair trial and the accused is entitled to a fair trial. Initially, the matter was withdrawn before plea because the key State witness was not available to testify as he is based in Britain,” he said.

“The State, being the custodians of the case, had to withdraw the matter before plea because they could not proceed with trial without the key State witness, and they could not keep the accused in custody as that infringes on his rights to a fair trial,” added.

Dr Muganyi said the State had to withdraw the matter since the trial had not started.
“When the State withdraws the matter before plea it does not mean the charges have been dropped, but the case is put aside and the accused persons are temporarily freed.

“When the State is ready, it proceeds by way of summons. The police are duty bound to look for the accused person, hand the summons to the accused, and make him sign as an acknowledgement that he or she has received the summons,” he said.

“The police return with signed summons as proof of service. But if the accused has not been issued with a summons, a warrant of arrest cannot be issued against the accused, and it cannot be said the accused defaulted because he or she has not yet been located,” he said.
Dr Muganyi said a warrant of arrest would have been issued against Nigel if he had received the summons and signed a return of service.

“The State had to withdraw the matter for the second time because the key State witness was due to return to Britain and only come back after two months, so the State had no choice but to withdraw the matter before plea,” he said.

“The State will proceed by way of summons, and when the accused is handed summons and signs summons as return of service but fails to attend trial, a warrant of arrest will be issued against him.”