Alfred Chirwa v The People (HPA/80/1971) [1971] ZMHC 1 (27 August 1971)

ALFRED CHIRWA v THE PEOPLE (1971) ZR 37 (HC) HIGH COURT DOYLE CJ I 27TH 30 AUGUST 1971 (HPA/80/1971) Flynote Criminal law and procedure - Appeal - Conviction of theft of motor vehicle - Plea I of guilty wrongly entered - Whether competent to convict of lesser offence. 35 Headnote The appellant pleaded guilty to and was convicted of theft of motor vehicle. There was no evidence that he intended to deprive the owner permanently of his property. The question was whether the accused could be convicted of the lesser offence of interference with a motor vehicle under s. 236 (3) of the Roads and Road Traffic I Ordinance. 40 Held: The court has no power to convict of a lesser offence where there has been no plea to the substantive offence in the court below and the magistrate has not considered accepting a plea to such lesser offence. I Legislation referred to: 45 Roads and Road Traffic Ordinance, 1959 (Cap. 173), s. 236 (3). Appellant in person. A L Mwenesha, State Advocate, for the respondent. 1971 ZR p38 I DOYLE CJ Judgment Doyle CJ: In this case the appellant was charged with theft of a motor car. He pleaded guilty in these words - "I admit stealing this motor vehicle. I took it from outside the Catholic Hall here in Kabwe, 5 and drove it on the Lusaka road. There I left it at the eight mile peg from Lusaka." It turns out that the motor vehicle has been recovered and in good condition. Clearly this was not a plea of guilty to the theft of a motor vehicle. There was no admission that appellant intended permanently to deprive the owner of the vehicle. In these circumstances, on the last 10 occasion I allowed the appeal and set aside the sentence. I went on, however, to substitute a conviction for interference with a motor vehicle, contrary to s. 236 (3) of the Roads and Road Traffic Ordinance. I still have seisin of this case as a final order has not been made. On further consideration, I have come to the conclusion that I have 15 no power to enter a plea of guilty to a lesser offence where there has been no plea to the substantive offence in the court below, and the magistrate has not considered accepting a plea to a lesser offence. In the circumstances, I set aside my order made on the 13th August, 1971 substituting a conviction and I order that the appellant be re-tried by another I magistrate 20 Retrial ordered ■ ■