George Kabamba v The People (HNA 235/1971) [1971] ZMHC 8 (10 September 1971)

GODFREY KABAMBA v THE PEOPLE (1971) ZR 84 (HC) HIGH COURT I CHOMBA J 5 10TH SEPTEMBER 1971 (HNA 235/1971 ) Flynote Criminal law and procedure - Legal representation - Accused not allowed to be represented by a lawyer nor permitted to call a witness - Whether 10 trial fair. Headnote The appellant was convicted of the offence of careless driving under s. 206 (1) of the Roads and Road Traffic Ordinance. He appealed on the grounds, inter alia, that he was not allowed to be represented by a lawyer nor was he allowed to call a witness. I Held: 15 ■ The appellant did not have a fair trial as his applications for legal representation and to I ■ call a witness were rejected. Appellant in person. I Assistant Senior State Advocate, Ndola, for the respondent. 20 Judgment Chomba J: The appellant in this case was convicted of the offence of careless driving, contrary to s. 206 (1), Cap. 173. The particulars of the offence were that on the 25th January, 1971, at Kitwe he drove a motor vehicle registration number GRZ 174 on Kitwe/Ndola Road with out due care and attention. In 25 his grounds of appeal he raises a number of points the most important of which are firstly that the trial magistrate and public prosecutor were seen to be in the magistrate's chambers together before the trial started, secondly that the magistrate prevented him from calling a defence witness and thirdly that he was prevented from employing a 30 lawyer to represent him at the trial. The Senior State Advocate, Mr Heron, representing the State, has conceded that the appellant's allegations are true but has added, so far as the allegation relating to the magistrate and public prosecutor being in chambers is concerned, that the public prosecutor was at the time a new arrival at Kitwe and was being introduced 35 to various magistrates including the trial magistrate and that the case we are concerned with now was not discussed. The learned Senior State Advocate informs the court that the trial magistrate refused the appellant permission to employ a lawyer because the lawyer concerned, a Mr Malama, was not present in court on the date of the request by the appellant and 40the magistrate found that the lawyer had had notice of the hearing and therefore if he wished to be absent on the occasion, he should have applied to the court to have his presence excused. On the question of the calling of the defence witness, the State Advocate has referred me to an endorsement on the record where the appellant asked to call an extra witness 45 and the magistrate's reaction may be quoted in full to be appreciated. ■ ■ I 1971 ZR p85 CHOMBA J He said, "The calling of this extra witness cannot be entertained because it is possible that he may be an invented witness." Having regard to all these aspects of the trial, I feel that the magistrate's conduct was such that it made the appellant fail to present his case according to his own wishes and I refer in particular to the rejection 5 of his application for legal representation and to call a defence witness. I take the view that the appellant did not have a fair trial and therefore the conviction in this case cannot be upheld. I quash it and set the sentence aside but order that the appellant be retried by a court of competent jurisdiction presided over by I a different magistrate. 10 Retrial ordered I