R v P.J. de Jager (Criminal Appeal Case 36 of 1935) [1935] ZMHCNR 5 (31 December 1935)

[Vol. I R. v. P. J. de JAGER. Criminal Appeal Case N o. 36 op 1935. Application by the appellant for conditional leave to appeal to the Privy Council from a judgment of the High Court in its appellate (Criminal) jurisdiction— application must be made to the Privy Council. This case decides that application for leave to appeal from a decision o f the High Court in a Criminal matter must not he made to the local court (i.e., to the High Court o f Northern Rhodesia), but to the Privy Council. The Northern Rhodesia Order in Council has now been amended and an appeal from the High Court now lies in the first instance, as o f right, to the Federal Supreme Court. Francis, J .: This is an application by the appellant, Petrus Johannes de Jager, for conditional leave to appeal to the Privy Council from a judgment o f this Court in its appellate jurisdiction affirming a conviction o f the appellant before the Court o f the Resident Magistrate, Ndola District. The matter first came before this Court on the 29th July and the papers show that it was filed within the period prescribed. It was then adjourned until the 12th August for the attendance before the High Court at Livingstone of one of the Crown Law Officers. Through illness o f the Judge, the Court was unable to sit on the appointed date, and the matter stood further adjourned until 26th August when, both parties being present, the motion was argued. So far as appeal to the Privy Council is concerned, the Charter o f Justice conferred on this Territory, is contained in Art. X X X I o f the Northern Rhodesia Order, 1924. The language in this article is clear, and purports to limit appeals in respect o f civil matters only. The article is implemented by the Northern Rhodesia (Privy Council Appeals) Order, 1913, which, in Art . II expressed in common form, details (para, (a)) the right o f appeal by grant and (para, (b)) the limitations to be observed by the local Court in entertaining applications for special leave to appeal in matters beyond those men­ tioned in para. (a). In coming to a determination on any such question, the Court is guided by principles laid down by the Privy Council. I agree with learned Counsel in support o f the motion that para. (6) contains an important delegation to this Court, but I am afraid that in the absence o f some specific mention of, or even hint concerning the matter, which I have not been able to find, I am unable to follow his D Vol. I] submission that the expression “ any other ju dgm en t ” in para, (b) confers on this Court a power to entertain an application fo r leave to appeal in criminal matters. It has been laid down that the P rivy Council is n ot a C ourt o f Criminal Appeal, but at the same time under Art. X X V I I I o f the P riv y Council Appeals Order, a power is reserved to adm it any appeal, in such circum­ stances as to the Board may seem proper. In my view this is sufficient indication that where an aggrieved person seeks redress in any criminal matter his avenue o f approach to the King in Council is not through the local Court, but direct to the P riv y Council itself. It is a matter o f comment that from among the m any criminal appeals dealt with by the Board, neither o f the parties in this m atter has been able to cite one instance where the petition for special leave to appeal was obtained from the local Court. On the contrary, from a num ber o f cases consulted by me it would appear that criminal appeals have invariably been admitted “ by leave o f the Board For the reasons given the motion must be dismissed. N ote.— Leave to appeal having been refused b y the H igh Court, the appellant petitioned the Privy Council. This petition was dismissed in the following Order in Council: L. S. At the Court at B uckingham P alace th e 23rd d a y of N ovember, 1937. P resent: The K ing’ s Most E xcellent Ma je sty in Cou n c il. W H EREAS there was this day read at the B oard a R eport from the Judicial Committee o f the P rivy Council dated the 8th day o f November, 1937, in the words following, v iz .: “ W H EREA S by virtue o f H is late M ajesty K ing Edward the Seventh’s Order in Council o f the 18th day o f October, 1909, there was referred unto this Comm ittee a humble Petition o f Peter Johannes D e Jager praying for special leave to appeal to Y our Majesty in Council from a Judgment o f the High Court o f Northern Rhodesia dated the 18th day o f June, 1936, and pronounced in the matter o f the conviction o f the Petitioner b y the Acting Resident Magistrate o f the Ndola District o f offences against the Penal Code o f Northern Rhodesia: “ TH E LORDS OF TH E COMMITTEE in obedience to His late Majesty’s said Order in Council have taken the said humble Petition into consideration and having heard Counsel in support thereof Their Lordships do this day agree humbly to report to Y our Majesty as their opinion that the said Petition ought to be dismissed.” [Vol. I HIS MAJESTY having taken the said Report into considera­ tion was pleased by and with the advice o f His Privy Council to approve thereof and to order as it is hereby ordered that the same be punctually observed obeyed and carried into execution. Whereof the Governor or Officer administering the Govern­ ment of Northern Rhodesia for the time being and all other persons whom it may concern are to take notice and govern themselves accordingly. M. P. A. H ankey.