John Banda v The People (Appeal No. 66 of 1970) [1970] ZMCA 13 (22 July 1970)

JOHN BANDA v THE PEOPLE (1970) ZR 14 (CA) COURT OF APPEAL I DOYLE CJ, PICKETT JA AND HUGHES J 40 22nd JULY 1970 Appeal No. 66 of 1970 Flynote Criminal law and procedure - Plea - Charge amended after plea has been taken and trial commenced - Appellant not asked to plead to amended 45 charge - Trial complete nullity. Criminal law and procedure - Charge - Amendment of - Procedure to be followed where amendment made during course of trial. ■ 1970 ZR p15 DOYLE CJ Headnote The appellant was charged with attempted rape but after the evidence of the first prosecution witness the prosecution applied to amend the charge to one of rape. The trial magistrate granted the application and proceeded with the trial without taking a I plea to the amended charge from the appellant. 5 Held: (i) The trial without a plea was a complete nullity. The trial magistrate should have asked the appellant to plead to the amended charge and informed him of his right to recall the I witness for cross - examination. 10 I Judgment Doyle CJ: delivered the judgment of the court. The appellant was charged with attempted rape. After the first witness was called the prosecution applied to amend the charge to rape. The magistrate complied with that request and the charge was so amended. At this stage the magistrate should first of all have asked 15the appellant to plead and then have informed him that he had the right to recall the witness for cross - examination. He did neither of these things but proceeded to trial without plea. In our view a trial without a plea is a complete nullity. We do not think it is a mere irregularity on which we can apply a proviso. We accordingly must quash the proceedings. 20 We could have directed a re-trial but we see no reason to do so as the accused has been in custody for a considerable time. It may be that the prosecution could reinstate this prosecution without the leave of the court. We do not decide that point but we point out that it would be an extremely offensive course to adopt. The appeal is allowed and sentence 25 and conviction quashed. Appeal allowed ■ ■