Francis Chanda v The People (Application No. 96 of 1971) [1971] ZMCA 3 (14 December 1971)

FRANCIS CHANDA v THE PEOPLE (1971) ZR 32 (CA) COURT OF APPEAL I BARON JP, 35 GARDNER AND HUGHES JJA 14TH DECEMBER 1971 (Application No. 96 of 1971) Flynote Criminal law and procedure - Appeal - Application for extension of time to appeal - Factors to be taken into account in considering. Headnote The 40 applicant was convicted of manslaughter on 9th June, 1971; he decided to appeal ■ on 3rd August and applied for an extension of time within which to appeal. Held: (i) The practice in Zambia is that the court will grant an application 45 for an extension of time to appeal irrespective of the merits or otherwise of the appeal, if it is satisfied that there is a reasonable excuse or explanation for the delay. ■ PICKETT JP (ii) If no such reasonable excuse or explanation is offered, the court will then consider the merits of the appeal and will grant the application if those merits are such that the appeal would probably succeed. 1971 ZR p33 I Cases referred to: 5 (1) Mwanza v The People(1967) ZR 138 (2 R v Lesser (1939) 27 Cr. App. R 69. (3) R v Marsh (1935) 25 Cr. App. R 49. Legislation referred to: I Criminal Procedure Code, 1965 (Cap. 7), s. 295. 10 Applicant in person. E J Chisengalumbwe, State Advocate, for the respondent. Judgment Baron JP: delivered the judgment of the court: This is an application for an extension of time for entering an appeal. The applicant was convicted of manslaughter on the 9th June, 1971; he decided to 15 appeal on August 3rd. Parliament has laid down rules as to the entering of appeals and the time limits have been prescribed so that they should be observed; they are not mere formalities. As Pickett, J (as he then was), observed in James Mwanza v The People (1): "Basically a convicted person who has 20 failed to appeal within the time stipulated under s. 295 (of the Criminal Procedure Code) should be regarded as having lost his right to appeal", and he referred to R v Lesser (2): I think the following passage from the judgment of Humphreys, J, in that case (at p. 7) is so apt in Zambia today that it is worth quoting in I full: 25 ■ ■ "There appears to be a danger of the rules which govern the proceedings of this Court being regarded as of no importance. The Court has listened to repeated applications for extensions of time for leave to appeal, which ■ have been put forward as if the granting of such an application were a mere matter of form. While the 30 Court is always willing to listen to such an application on the ground that the applicant did not understand what the points in issue were, or that he could not read or write, or on some ground of that kind relating to his particular case, it should be clearly understood that a person who has failed to appeal within the. . . 35 days allowed by statute has lost his right to appeal." The practice in Zambia is somewhat different from that in England where leave will not be granted unless on the merits the appeal will probably succeed: R v Marsh (3). Here the court will grant the application irrespective of the merits or otherwise of the appeal if it is satisfied that there 40 is a reasonable excuse or explanation for the delay; if no such reasonable excuse or explanation is offered, the court will then consider the merits of the appeal and will grant the application if those merits are such that the appeal would probably succeed: James Mwanza v The People (supra). ■ ■ PICKETT JP 1971 ZR p34 • The applicant gives as his reason for the delay that he was still reviewing his case and had then reached the stage where he wished to appeal. This is not an acceptable excuse or explanation for the delay; the court will therefore grant leave only if the appeal would I probably succeed. The 5 applicant was charged with murder; the information was amended to a charge of manslaughter to which the applicant pleaded guilty. The facts, which the applicant agreed were correct, were that he and a number of friends had been drinking at a bar for some hours and on the way home they met the deceased and two other men who had also 10 been drinking at the same bar. At first the atmosphere was friendly, but then a quarrel ensued during which the applicant drew a knife and stabbed the deceased, who died shortly afterwards in hospital. These facts clearly support the conviction; there are thus no grounds on which the conviction could be set aside. The 15 applicant was a first offender and advanced other mitigating factors. The learned judge, in sentencing the applicant to three years' imprisonment with hard labour, said that although the applicant had a clean record, quarrelling and stabbing after heavy bouts of drinking was becoming prevalent and that the offence became more serious when the 20 quarrel resulted in death. There is no error of principle in this approach, nor does the sentence strike us as excessive. In the result it cannot be said that the appeal would probably succeed. The application for leave to appeal, in relation to both conviction and sentence, must be refused. Application 25refused • I I