Chiteta v The People (HNA/561/1975) [1976] ZMHC 3 (15 January 1976)

CHITETA v THE PEOPLE (1976) ZR 21 (HC) HIGH COURT MOODLEY J 15th JANUARY 1976 I No. 5 HNA/561/1975 Flynote Criminal procedure - Bail - Failure of accused to surrender on specified date - Whether very fact of failure warrants penalty of forfeiture - Discretion of court I to order forfeiture - Criminal Procedure Code, s. 131 (1). 10 Criminal procedure - Bail - Forfeiture - Misdirection by magistrate - Procedure to be followed before order of forfeiture. Criminal procedure - Bail - Where breach of conditions of recogizance alleged - What prosecution must prove - Standard of proof. Headnote The appellant appealed against an order of forfeiture made by a 15 magistrate at Kasempa. He had bound himself as a surety on behalf of an accused person in a sum of K400.00. On the 3rd November, 1975, which was the trial date, when the case was called up neither the accused nor the appellant were in court. Thereafter the magistrate ordered that the surety be called up to explain to the court as to the whereabouts of the accused. 20 The appellant who was a civil servant was not in his office at the relevant time and the public prosecutor applied for bench warrants to be issued against the accused and the appellant. The bench warrants were duly executed on the same day and both the accused and the appellant were brought before the magistrate. The accused was asked why he did not 25 attend court that morning and he replied that on the day the case came up for plea he had heard that the trial would be held on the 4th November, 1975, and that he did not check the actual date on the recognizance form. The appellant explained that he did not know when the case was to come up for trial. The magistrate rejected the explanations given by the accused 30 and the appellant and ordered that the sums of K400 in respect of which the accused and the appellant had bound themselves by way of recognizances be forfeited under section 131 (1) of the Criminal Procedure Code, Cap. 160. Further the magistrate ordered that the accused and his surety were to undergo a term of simple imprisonment for three months unless 35 and until the money mentioned in the recognizances be sooner paid or levied. ■ ■ ■ ■ ■ Held: (i) The very fact that an accused person who was on bail does not surrender himself on the date stated in the recognizance form 40 does not of itself warrant a trial court to penalise ■ a surety or an accused person by ordering the forfeiture of any recognizance. (ii) Section 131 (1) of the Criminal Procedure Code, Cap. 160, gives the court a discretion to order such a forfeiture. MOODLEY J 1976 ZR p21 (iii) As there was neither evidence to show that the accused had absconded or did not intend to surrender himself for trial nor that the appellant was in any way negligent as a surety or that he had connived at the accused's absence from court that morning, the breach of I the conditions of the recognizance did not 5 warrant an extreme penalty. (iv) The magistrate misdirected himself in proceeding the way he did before he made the order of forfeiture. (v) The appellant should have been informed of the breach that was alleged against him and the breach should have been proved by 10 precise evidence. He should have been asked ■ whether he desired to give evidence or to make a statement from the dock with regard to the breach alleged and whether he had any witnesses whom he wished to call. (vi) A surety must be given an opportunity to explain his conduct 15 in relation to the alleged ■ breach. (vii) Where a breach of the conditions of a recognizance is alleged, the prosecution must prove beyond reasonable doubt that the surety was negligent in or that he had deliberately refrained from exercising his responsibilities in order to secure the attendance of an accused person at court. Cases referred to: (1) R v Pine 24 Cr. App. R 10. (2) R v David 27 Cr. App. R 50. I (3) R v McGregor 30 Cr. App. R 155. 25 (4) R v McGarry 30 Cr. App. R 187. Legislation referred to: National Parks and Wildlife Act, Cap. 316, ss. 111 (1) and 140. Criminal Procedure Code, Cap. 160, s. 131 (1). I Criminal Justice Act, 1948, s. 6 (4). 30 Fines Act, 1933. G M Sheik, Senior Legal Aid Counsel, for the appellant. S C Heron, Assistant Senior State Advocate, for the respondent. Judgment Moodley J: This is an appeal against an order of forfeiture made by Magistrate Class II sitting at Kasempa. The appellant had 35 bound himself as a surety on behalf of an ■ accused person, namely, Fundulu Sandando who had been charged with being in unlawful possession of Government trophy contrary to sections 111 (1) and 140 of the National Parks and Wildlife Act, Cap. 316. On the 28th October, 1975, both the appellant and the accused bound themselves in their own recognizances 40 in the sum of K400.00 each and the trial was set down for the 3rd November, 1975. When the case involving the accused was called up on the 3rd November, 1975, neither the accused nor the appellant were said to ■ 1976 ZR p22 I ■ MOODLEY J be in Court. Thereafter, according to the record, the learned magistrate ordered that the surety should be called to come and explain to the Court as to the whereabouts of the principal party, namely, the accused. The appellant who was a civil servant was not in his office at the relevant 5 time and the Public Prosecutor applied for bench warrants to be issued against the accused and the appellant. The bench warrants were duly executed and at 1430 hours on the same day, both the accused and the appellant were brought before the learned trial magistrate. The accused was asked why he did not attend court that morning 10 and he replied that on the day the case came up for plea he had heard that the trial would be held on the 4th November, 1975, and that he did not check the actual date on the recognizance form. The appellant who was the surety explained that he did not know when the case was to come up for trial. The learned magistrate rejected the explanations given by the 15 accused and the appellant and ordered that the sums of K400.00 in respect of which the accused and the appellant had bound themselves by way of recognizances should be forfeited under section 131 (1) of the Criminal Procedure Code, Cap, 160. Further in default of payment, the learned magistrate ordered that the accused and his surety were to undergo 20 a term of simple imprisonment for three months unless and until the amount mentioned in such recognizances would be sooner paid or levied. Mr Sheikh who now appears for the surety and who is the appellant in this matter submits that any order passed by a magistrate in terms of section 131 (1) of the Criminal Procedure Code was appealable and may 25 be revised by the High Court. Mr Sheikh argues that the learned trial magistrate was unnecessarily harsh by ordering the appellant to forfeit the sum of K400.00 when the facts on record clearly showed that the accused and the appellant were before the trial court on the very day, albeit their attendance was secured by way of bench warrants. He submits 30 that the accused gave a reasonable explanation as to why he had not turned up in court that morning. Similarly, the appellant had also rendered a reasonable explanation which should have persuaded the trial court to adopt a more lenient approach to this matter than it had ■ ■ ■ ■ ■ done. Mr Heron for the State supports the contentions advanced by Mr Sheikh on behalf of 35 the appellant. An examination of the case record reveals that the accused had breached the conditions of his recognizance in not presenting himself before the trial court on the morning of the 3rd November, 1975. The appellant had bound himself as a surety on behalf of the accused in the 40 sum of K400.00. The very fact that an accused person who was on bail does not surrender himself on the date stated in the recognizance form does not of itself warrant a trial court to penalise a surety or an accused person by ordering the forfeiture of any recognizance. Section 131 (1) of the Criminal Procedure Code gives the court a discretion to order such a 45 forfeiture. In the instant case no great harm has been done because both the accused and the appellant were before the court on that very day. There was no evidence to show that the accused had absconded or did not intend to surrender himself for trial. Neither was there evidence to show ■ ■ 1976 ZR p23 I ■ ■ MOODLEY J that the appellant was in any way negligent as a surety or that he had connived at the accused's absence from court that morning. The breach in my view did not warrant an extreme penalty. Paragraph 293 of Archbo'd Criminal Pleading Evidence and Practice 38th Edition against the heading "Sureties" reads as follows: "Before a 5 surety formally accepts the obligations imposed upon him it is the practice (i) to explain to him exactly what the obligations involve, (ii) to ensure that he understands the obligations he has undertaken, (iii) to ensure that he is still prepared to undertake the obligations and that he is worth the sum involved after all his debts are paid, and (iv) to 10 warn him of the consequences, which include possible imprisonment, if the defendant fails to appear when required to. As to when a surety believes that the accused is unlikely to appear at the time and place required and accordingly wishes to be relieved of his obligations, see the Criminal Justice Act 1967, s. 23, post, 302a. If the condition of a recognizance 15 entered into either by a party or by his sureties be broken, the recognizances may be forfeited, and on forfeiture the obligees become debtors to the Crown for the sums in which they are respectively bound (see the Fines Act 1833). The court, however, has a discretion whether to order the estreat of a recognizance. In practice, the explanation, whether sworn or 20 otherwise, that the surety had taken all reasonable steps to secure the attendance of the defendant is carefully scrutinised before the court's discretion is exercised in favour of the surety." Paragraph 670 of Archbold 38th Edition under the heading "Proof of Breach" reads as follows: "The breach of the recognizance must be 25 properly proved. R v Pine [1], R v David [2], R v McGregor [3], R v McGarry [4]. The defendant should be informed what is the breach alleged against him, and such breach should be proved by precise evidence. The breach should be proved with the same particularity as if the allegation were that the defendant had committed a crime: R v McGarry, ante. As to 30 proof by certificate of a magistrates' court under the Criminal Justice Act, 1948, s. 6 (4) see post, 732. The defendant should be asked whether he desires to give evidence, or to make a statement from the dock, with regard to the breach alleged and whether he has any witness whom he wishes to call: R v McGregor, ante. It is proper and desirable that counsel 35 should be instructed for the prosecution in such cases." Thus, it is quite clear that the learned magistrate had misdirected himself in proceeding the way he did before he made the order of forfeiture. The appellant should have been informed of the breach that was alleged against him and the breach should have been proved by precise 40 evidence. He should have been asked whether he desired to give evidence or to make a statement from the dock with regard to the breach alleged and whether he had any witnesses whom he wished to call. A surety must be given an opportunity to explain his conduct in relation to the alleged breach. Where a breach of the conditions of a recognizance is alleged, the 45 prosecution must prove beyond reasonable doubt that the surety was negligent in or that he had deliberately refrained from exercising his responsibilities in order to secure the attendance of an accused person at court. There was no such evidence in this matter to support the action ■ ■ ■ ■ ■ ■ MOODLEY J taken against the surety. In the face of this misdirection, it is not possible to uphold the order of forfeiture of the surety's recognizance. In the result, the appeal is allowed and the order of forfeiture is quashed. It is further ordered that the sum of K400.00 paid in respect of the said order be 5 returned to the appellant. Appeal allowed I 1976 ZR p24