Bachegwa v The Queen (Criminal Appeal No. 103 of 1956) [1956] EACA 16 (1 January 1956)

### CRIMINAL REVISION

### Before EDMONDS, J.

## LUKAS BACHEGWA, Appellant

ν

# THE QUEEN, Respondent

# Criminal Appeal No. 103 of 1956

Criminal procedure and practice—Framing of charge—Charge to contain details showing precise nature of offence-Plea-If accused's apparent intention is not to plead guilty, the Court must not accept the plea as one of guilty however it is worded—Duty of Court to investigate mitigating circumstances alleged in plea of guilty.

The accused, a Mkikuyu tribesman, was charged with an offence against a curfew order made under section 64 of the Police Ordinance. The particulars of the charge were very brief and did not specify either the nature of the curfew order or the time and place at which the accused was alleged to have been found breaking it. His plea consisted of a long statement of such a nature that it was apparent that he did not intend to plead guilty. The magistrate, however, recorded one sentence of the plea which he accepted as a plea of guilty. After convicting the accused he proceeded to pass sentence on him without investigating whether or not the remaining facts alleged in the plea were true. These facts, if true, considerably mitigate the offence.

The accused appealed against his conviction. As a plea of guilty had been recorded, the case was dealt with on revision.

Held (19-5-56).—(1) That the charge was bad as it did not contain details showing the precise nature of the offence.

(2) That the accused obviously intended not to plead guilty. The Magistrate should have had regard to the effect of the whole plea and should not have taken one sentence in isolation and accepted it as a plea of guilty.

(3) That, even if the plea could have been properly accepted as one of guilty, the Magistrate had a duty to investigate mitigating circumstances alleged in it before passing sentence.

Conviction and sentence set aside.

Reported by: I. R. Thompson, Esq., Resident Magistrate.

REVISIONARY ORDER.—The accused was convicted of an offence contrary to section 64 of the Police Ordinance and was sentenced to pay a fine of Sh. 100 with three months' detention in default of payment. The accused has preferred an appeal against conviction and sentence, but having regard to the provisions of section 348 (2) of the Criminal Procedure Code he has no right of appeal. I propose, however, to deal with the matter in revision.

The charge against the accused was drawn in the following terms:—

"Breaking curfew order contrary to section 64 of the Police Ordinance as amended by the Emergency (Amendment of Laws) Amended No. 2 Reg. and G. N. $305/53$ .

Particulars of Offence.—Lukas Bachegwa on the 8th day of April, 1956, at Burnt Forest in the Rift Valley Province was found out of doors in violation of curfew order applied to Ward 3 of Uasin Gishu District."

The trial magistrate should firstly have amended the charge as framed and should not have allowed the statement of offence as in this charge to have remained in its ungrammatical wording. Apart from this, however, Government Notice No. 305/53, under which the charge was laid, has been revoked and amended by Government Notice No. 1637 of 1955. Government Notice No. 1637 provides that the Commissioner of Police or Provincial Commissioner may make it an offence in respect of any particular area for any person to remain out of doors of the premises in which he normally resides during certain hours to be specified, unless such persons have the authority of a written permit granted by a police officer or other officer specified in the curfew order. Government Notice No. 1744 has applied section 64, as amended, to the Uasin Gishu District. The particulars of the offence charged in this case do not constitute a contravention of section 64 as amended. There is no provision that it shall be an offence to be "found out of doors"—the provision is that a person shall not be out of doors of "the premises in which he normally resides during such hours as may be specified". It is essential that an accused person should be able to tell from the charge the precise nature of the offence alleged against him so that he may be in a position to put forward his defence and direct<br>his evidence to meet it. The charge as framed in this case certainly failed to give the accused sufficient notice of the nature of the charge against him.

Apart from this consideration, however, it would appear that the accused did not, or did not intend to, plead guilty to the charge. As a consequence of the Memorandum of Appeal the trial magistrate made a note explaining what occurred at the accused's trial and the following is an extract from that note:—

"In my opinion there was no question of the accused not understanding. He spoke ordinary farm Swahili which I understood and he appeared to understand what I said to him. Like many Africans, he would not make a direct answer to the charge and proceeded with a speech excusing his actions. He eventually agreed that he was not on the farm where he was employed on the night in question, which I took as a plea of guilty. The accused proceeded with his story, more or less as set out in the Memorandum of his Appeal."

Having regard to this statement by the trial magistrate and to the contents of the Memorandum of Appeal it is clear that the accused did not intend to plead guilty. But even if it could be said that his words amounted to a plea of guilty the magistrate should have made enquiry as to the mitigating circumstances which the accused urged, for if those circumstances proved to be true and the accused's efforts not to evade the law were genuine, his offence would have amounted to little more than a technical infringement of the regulations and the sentence would no doubt have been considerably reduced by the magistrate.

In all the circumstances I consider that the trial was unsatisfactory. I order that the conviction and sentence be set aside. The Attorney-General does not oppose this order.

As this order has the effect of declaring the trial to have been a nullity there is, of course, nothing to prevent the prosecution from preferring a fresh charge against the accused should it see fit to do so. If a further charge is preferred against the accused it is ordered that the proceedings of the trial should be forwarded to this Court for inspection.