R v Abraham Nyendwa (Criminal Review Case 350 of 1940) [1940] ZMHCNR 12 (31 December 1940)

104 Vol. II] R. v. ABRAHAM NYENDWA. Cr im in a l R e v ie w Case N o. 350 o f 1940. Guilty but insane-finding cannot be revised by High Court but can be appealed against. A finding o f “ guilty but insane ” is a special finding which is equivalent to a finding o f “ not guilty ” and so is an acquittal. The High Court has no power to revise a verdict o f acquittal but such a verdict is appealable. Law, C. J .: The accused was charged before the Resident Magistrate, Lusaka, on the 19th November, 1940, with the offence o f attempting to commit arson on the 6th October, 1940, contrary to section 295 (1) Penal Code. On the 3rd December, 1940, the Magistrate made a finding that the accused committed the act charged but was insane at the time. This was a special finding under section 153 Criminal Procedure Code of “ guilty but insane ” . In compliance with that section the Magistrate reported the case to the High Court which, in turn, is required to report the same to the Governor. 2. The case has thus come to the knowledge o f the H igh Court, but the question for consideration is whether the H igh Court is at liberty to exercise its powers on revision, under section 309 Criminal Procedure Code, as regards this special finding. 3. In the case o f Felstead v. The K ing, A ppeal Cases, 1914, p. 534, it was decided by the House o f Lords that the special verdict o f “ guilty but insane ” takes the place o f the general verdict o f “ not guilty ” and is a verdict o f acquittal. Consequently, the accused in that case was not a person convicted on indictm ent and could not, therefore, avail himself o f section 3 Criminal Appeal A ct, 1907, which gives a Tight o f appeal to persons convicted on indictm ent but not otherwise. 4. In view o f the decision in Felstead’s case the Magistrate’s special finding o f “ guilty but insane ” must be regarded as an order o f acquittal. Such an order, however, cannot be revised by this Court because o f the specific provision to that effect in section 309 (1) (b) Criminal Procedure Code. 5. I f this Court were acting in its appellate capacity and not on revision the question for consideration w ould arise whether section 300 (c) Criminal Procedure Code would perm it an appeal from a special verdict of “ guilty but insane ” in view o f the words “ on an appeal from any other order ” which appear therein. I t has been argued that this section must be read together with the preceding section 294 which relates solely to appeals from convictions and sentences. Also, that the words quoted above should be read as relating only to orders ancillary to orders of acquittal or conviction, such as may be m ade b y a Subordinate Court as B [Vol. II to costs, compensation, restitution of property, etc. Against this argu­ ment, however, it must be borne in mind that the Legislature chose specific and unambiguous language to exclude orders o f acquittal from being revised (section 309 (1) (b)), but did not so express its intention to exclude them from being appealed (section 300 (c)). In these circum­ stances, therefore, I am unable to agree that there is no appeal from an order o f acquittal. In plain English, an order o f acquittal is obviously “ any other order ” than an order o f conviction or sentence. Conse­ quently, the reasons in Felstead’s case for an order o f acquittal not being appealable under section 3 Criminal Appeal Act, 1907, do not apply in this Territory because o f the language employed in section 300 (c). 6. In my opinion, therefore, an order of acquittal is appealable under section 300 (c) though it cannot be revised under section 309 (1) (b) however erroneous the order may appear to he. 7 7. For the foregoing reasons no order can be made in this revision altering or reversing the Magistrate’s finding o f “ guilty but insane ” .