Alfred Chamanga v The People (Appeal No. 35 of 1970) [1970] ZMHC 2 (17 June 1970)

ALFRED CHAMANGA v THE PEOPLE (1970) ZR 18 (HC) I HIGH COURT 5 DOYLE CJ, PICKETT JA AND GARDNER J 17TH JUNE 1970 Appeal No. 35 of 1970 Flynote Criminal law and procedure - Summing up by Judge Advocate - Inadequate Summing up - Effect on conviction - Defence Force (Procedure) Rules, 10 r. 63. ■ Headnote The facts are given in the judgment. Held: (i) There was no adequate summing up on the evidence by the Judge Advocate as required by the Act and the proceedings 15 were a mistrial. ■ Legislation referred to: Defence Force (Procedure) Rules, Cap. 131, r. 63. [] Editorial Note: The Act referred to in the judgment is the Defence Force Act, Cap. 131 and the required provision is under the Defence 20 Force (Procedure) Rules, r. 63 ■ Judgment Doyle CJ: delivered the judgment of the court. The appellant was convicted at a court martial of two offences. He appeals to this court on the ground mainly that there was no adequate summing up by the Judge Advocate. There is not the slightest doubt that 25 this is true and the State does not support the ■ conviction. The learned Judge Advocate is required by the Act to sum up on the evidence. There is not one word in his summing up about this evidence. There is no doubt that the issues were not entirely uncomplicated and there was a great deal of conflicting evidence. Indeed even now one might find some 30 difficulty in deciding which tyre the appellant was convicted of stealing. There is no doubt that there has been a mistrial and the only question is whether this court could exercise the proviso in relation to one or other of the convictions. We have been through the record and we are quite satisfied that it is impossible for this court to say that, had the court 35 martial been properly directed, they must have come to the same conclusion. Accordingly the appeal is allowed and the accused is acquitted. Appeal allowed ■ ■