Joshua Mapusha v The Queen ((1963 - 1964) Z and NRLR 90) [1964] ZMHCNR 9 (28 May 1964)

JOSHUA MAPUSHI v THE QUEEN (1963 - 1964) Z and NRLR 90 1963 - 1964 Z and NRLR p90 [Before the Honourable Mr. Jus�ce CHARLES at Lusaka on the 28th May, 1964.] Flynote Amendment of the charge - non-compliance with sec�on 192 of the Criminal Procedure Code, Cap 7 - applica�on in such a case of sec�on 323 of the Original Procedure Code, Cap. 7. Headnote The appellant was convicted in the subordinate court of proposing violence contrary to sec�on 77A (1) (a) of the Penal Code. A�er the close of the prosecu�on case, the charge was amended by subs�tu�ng the name of one place for another as the place where the alleged offence was commited. The appellant was not informed of his right to have the witnesses who had already given evidence recalled. Held: (a) The fact that sec�on 192 of the Criminal Procedure Code was not complied with rendered the convic�on liable to be quashed. (b) Sec�on 323 of the Criminal Procedure Code could, however, be applied on the facts of the case and avoid the convic�on being quashed on these grounds. (c) The convic�on must be quashed on other grounds. Appeal allowed. Convic�on and sentence quashed. Cases cited: (1) Reuben v R 1962 R & N 518. (2) Regina v Timothy Nyonga HPR 324/1963 (unreported). (3) Wallwork v R 42 Cr. App. R 153. J J O'Grady, Crown Counsel for the Crown E Beaton for the appellant Judgment Charles J: This is an appeal from the Subordinate Court (Class II), Lusaka, in respect of convic�on and sentence. The convic�on was of having proposed violence contrary to sec�on 77A (1) (a) of the Penal Code, Cap. 6, and the sentence was imprisonment with hard labour for one year. The appeal is upon several grounds of which one is that the court below amended the charge a�er the close of the case for the prosecu�on without no�fying the appellant that he had a right to object. As framed that ground appears to me to have litle substance in it. It does, however, raise a per�nent ques�on: whether or not the convic�on is a nullity by reason of the charge having been amended without complying with sec�on 192 of the Criminal Procedure Code. 1963 - 1964 Z and NRLR p91 CHARLES J That sec�on, from which a subordinate court derives its jurisdic�on to amend a defec�ve charge, is as follows: "192. (1) Where, at any stage of a trial before the close of the case for the prosecu�on, it appears to the court that the charge is defec�ve, either in substance or form, the court may make such order for the altera�on of the charge either by way of amendment of the charge or by the subs�tu�on or addi�on of a new charge as the court thinks necessary to meet the circumstances of the case: Provided that, where a charge is altered as aforesaid, the court shall thereupon call upon the accused person to plead to the altered charge: Provided further that, where a charge is altered under this subsec�on, the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross - examined by the accused or his advocate and, in such last men�oned event, the prosecu�on shall have the right to re-examine any such witness or maters arising out of such further cross - examina�on. (2) Variance between the charge and the evidence adduced in support of it with respect to the �me at which the alleged offence was commited is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact ins�tuted within the �me (if any) limited by law for the ins�tu�on thereof. (3) Where an altera�on of a charge is made under subsec�on (1) or there is a variance between the charge and the evidence as described in subsec�on (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary." The record in this case shows that the charge was amended by subs�tu�ng the name of one place for another as the place where the alleged offence was commited, and that sec�on 192 was not complied with in the following respects: (1) The amendment was made immediately a�er instead of before the close of the case for the prosecu�on. (2) The appellant was not informed of his right to have the witwitnesses recalled either for the purpose of giving their evidence afresh or for further cross - examina�on. The record also leaves it doub�ul whether the appellant was re-arraigned on the amended charge, as all that it shows is " par�culars put to him afresh " a�er the amendment. Each of the two omissions was at least an irregularity in procedure which rendered the convic�on liable to be quashed unless it was saved under sec�on 323 of the Criminal Procedure Code. Whether it went further depends upon whether the par�cular requirements of sec�on 192 which were not observed are to be construed as condi�ons precedent to the exercise of the power of amendment or to the con�nua�on of the trial on the amended charge. If the par�cular requirements are so to be construed, the con�nua�on of the trial on the amended charge was a nullity, with the result that the convic�on and sentence are also nulli�es which 1963 - 1964 Z and NRLR p92 CHARLES J accordingly have to be quashed. Sec�on 323 is necessarily limited in its applica�on to saving convic�ons which are quashable because of irregularity in procedure: it cannot be applied to give legal effect to something which is incapable of having legal effect. (See Reuben v R 1962 R & N. 518 at page 529 per Blagden J) In Regina v Timothy Nyonga (Review case HPR 324/1963) I held that compliance with the requirements of sec�on 192 was a condi�on precedent to a subordinate court having jurisdic�on to con�nue a trial on an amended charge. The basis of that decision was that, as the legislature had conferred jurisdic�on on subordinate courts to amend charges and to con�nue trials on amended charges and had imposed condi�ons for the exercise of that jurisdic�on, the presumed inten�on is that exercise of the jurisdic�on should be dependent upon the observance of those condi�ons. Further considera�on has sa�sfied me that that decision was wrong as it was based on a disregard of the following: the jurisdic�on conferred by sec�on 192 on a subordinate court to amend a defec�ve charge applies not only in respect of a charge which is defec�ve in a mater of substance but to a charge which is defec�ve in a formal mater, a formal defect in a charge, for example, a defect which is a non-compliance with sec�on 127C of the Criminal Procedure Code, obviously does not affect the jurisdic�on of the court hearing the charge but is an irregularity only (see Wallwork v R 42 Cr. App. R 153) as to the effect of non-compliance with the English statutory provision corresponding to sec�on 127C (b), which relates to statements of �me and place in the par�culars of charges): consequently if a charge containing a formal defect was le� unamended, a convic�on upon it would not be a nullity: it is to be presumed that the legislature did not intend the anomaly which would result if a convic�on based on a formally defec�ve charge which had been le� unamended was valid un�l set aside and a convic�on based on a charge improperly amended in order to cure a formal defect was a nullity, but intended that both kinds of convic�ons should be voidable only. It follows that, in my judgment, the proper construc�on to be placed upon sec�on 192 is that an amendment made in disregard of any of the requirements of that sec�on is an irregularity only which renders a convic�on based upon the amended charge voidable, not void. The next ques�on is whether the convic�on should be quashed under sec�on 323 of the Criminal Procedure Code because of the irregular amendment. That sec�on is as follows: "323. Subject to the provisions hereinbefore contained no finding sentence or order passed by a court of competent jurisdic�on shall be reversed or altered on appeal or revision on appeal or revision on any ground whatsoever unless any mater raised in such ground has in the opinion of the appellate court in fact occasioned a substan�al miscarriage of jus�ce: Provided that in determining whether any such mater has occasioned a substan�al miscarriage of jus�ce the court shall have regard to the ques�on whether the objec�on could and should have been raised at an earlier stage in the proceeding." 1963 - 1964 Z and NRLR p93 CHARLES J The sec�on was completely analysed by Blagden, J, in Reuben v R supra, and he reached the conclusion that, notwithstanding the use of the word " shall " in it, its effect was to leave this court in exercising its appellate or revising jurisdic�on with a discre�on to quash a convic�on which was tainted by an irregularity in procedure although the irregularity had not occasioned a substan�al miscarriage of jus�ce. With all respect to the learned judge, I am unable to agree with that conclusion. The sec�on appears to me to be expressed in such mandatory terms that this court is bound to dismiss an appeal against convic�on on the ground of irregularity when the irregularity has not in fact occasioned a substan�al miscarriage of jus�ce. The phrase " in fact occasioned a substan�al miscarriage of jus�ce ", however, is one which is not restricted to convic�ons of the innocent. An accused person has a right to be tried in manner and form prescribed by law and the accepted prac�ce of the criminal courts for the purpose of ensuring a fair trial and all that that involves. Consequently, if that right is infringed by disregarding the manner and form in any par�cular, and the accused is convicted, he has prima facie suffered an injus�ce, and that injus�ce becomes substan�al, and a fact, if it is impossible to say that any par�cular disregard of the prescribed manner and form did not adversely affect him to the extent of depriving him of a fair trial or of the chance of an acquital which was reasonably open to him. The effect of that construc�on does not appear to be really different from the effect of that placed upon the sec�on by Blagden, J In this case I am unable to find anything in the record sugges�ng that the irregulari�es atending the amendment of the charge in respect of the place where the alleged offence was commited could have occasioned a substan�al miscarriage of jus�ce in the convic�on of the appellant. The ground of appeal based on those irregulari�es therefore fails. That does not dispose of the appeal, however. The record shows a considerable variance between the charge in respect of the statement alleged to have been an incitement to violence and the evidence of the two witnesses who were called to prove that statement. It also shows a considerable variance between the two witnesses themselves as to the statement actually made. Those variances necessarily rendered the credibility of the evidence of the two witnesses suspect on a most material point, and their evidence should not have been accepted in the absence of a reasonable explana�on for the variances. No explana�on was given, or sought, and the magistrate, so far from considering the variances at all, found that the two witnesses were credible and that their evidence established the offence charged. Such a lack of proper considera�on of the evidence was a serious irregularity which appears to me to have occasioned in fact a substan�al miscarriage of jus�ce as I have defined the phrase. Consequently, in my judgment, the appeal must be allowed. It is to be noted that the record also reveals the following unsa�sfactory features about the trial, none of which however would warrant quashing the convic�on if it did not have to be quashed on the ground last stated: (a) The prosecutor interrupted the cross - examina�on of the appellant to tell him that he was a liar, apparently without 1963 - 1964 Z and NRLR p94 CHARLES J rebuke. Cross - examina�on is for assis�ng in elucida�ng the truth, not for affording an opportunity to indulge in vulgar abuse. (b) The witness called for the appellant was re-examined a�er the prosecutor had declined to cross - examine. It is elementary that there can be no re-examina�on when there has been no cross - examina�on. (c) The �me between the appellant's arrest and the commencement of his trial was nearly two months, although the evidence of the prosecu�on witnesses was rela�vely short and those witnesses were only three in number, one of whom was a police officer who should have been readily available. During the interval defence witnesses seem to have disappeared. The appeal will be allowed, the convic�on and sentence being quashed and a judgment of acquital subs�tuted.