R v Changala and Two Others (Criminal Review Case 50 of 1938) [1938] ZMHCNR 10 (31 December 1938)

30 Vol. II] R. v. CHANGALA AND TW O O T H E R S. Criminal R eview Case No. 50 of 1938. Preliminary inquiry—Subordinate Court (Class I I I ) — murder— Criminal Procedure Code, Part V II—statements o f three amused persons taken in respect o f charge o f murder under section 206— charges summarily adjudicated by Court under section 210 and all three accused convicted of manslaughter—Subordinate Court o f third class jurisdiction in charges o f murder—proceedings a nullity—new trial ordered. At the time o f this case a Court o f the third class had Juris­ diction to try a charge o f manslaughter. Now no Subordinate Court has such jurisdiction. The Magistrate, after hearing the evidence for the prosecution and the statements o f the accused at a preliminary inquiry, came to the conclusion that a charge o f murder could not be substantiated and then, purporting to act under section 210 o f the Criminal Pro­ cedure Code, summarily found the accused guilty o f manslaughter. He did not comply with the proviso to section 210 o f the Criminal Procedure Code and in effect tried a case o f murder finding the accused guilty o f manslaughter. The proceedings were declared a nullity. See also B. v. Kasonde p. 14 ante and R. v. Kafungwa p. 60 post. Francis, C . J.: This is a case submitted by the Magistrate o f the Provincial Commissioner’s Court, Central Province, to whom it was sent under Criminal Procedure Code section 8 (5) for confirmation o f sentence. The case commenced on the 14th March as an inquest before the Subordinate Court III, Broken Hill, touching the death o f one Chileki. The Magistrate having satisfied himself that an offence had been com ­ mitted, ordered the proceedings to commence de novo as a Preliminary Inquiry, Part VII, o f the Criminal Procedure Code. Thereupon three accused persons, Changala, Chipale and Pensulu, all o f Broken Hill, were charged with the murder o f the deceased Chileki under section 177 o f the Penal Code. First among eleven witnesses to give evidence was Chief Inspector Maxwell o f the Northern Rhodesia Police. It is not recorded that any public prosecutor appeared in the case, but since the Chief Inspector seems to have investigated the case, it may he assumed that he was in charge o f the prosecution. The evidence o f the witnesses for the prosecution having been completed, a note “ case for prosecution ” is recorded. Thereupon each accused person under the statutory warning made a statement, and named witnesses whom he wished called at his trial. [Vol. II Apparently at this stage there was an adjournment, although the fact is not recorded. On resumption of the proceedings the next day, the Magistrate proceeded to record his finding, in the course o f which he expressed the opinion that there was not sufficient evidence to sustain a charge o f murder as the facts disclosed “ a drunken brawl which ended in fatal consequences ” , The Magistrate ends off his judgment with the two paragraphs hereunder set out: “ The evidence seems to show that Shabungwa was the most violent assailant o f Tawelo, but the others must bear their share in the responsibility. Had they not assisted it is possible that Tawelo would have been able to hold his own. And in this connection I do not consider Kaswaka William Tubongo or James Yakobo Tobongo should get off scot free; o f Mulaishayo's com ­ plicity there may be a little doubt. It accordingly appears to this Court that this offence is o f such a nature that it may suitably be dealt with under the powers possessed by this Court in accordance with section 210 o f the Criminal Procedure Code, and determined forthwith, subject to immediate review by the Provincial Commissioner. All three accused are accordingly found guilty o f Manslaughter Con. sections 176 and 179 of the Penal Code.” The Magistrate thereupon sentenced the three accused as follow s: Shabungwa to twelve months, and Chipalo and Pensulo each to six months I. H . L. In reporting the case to this Court, the Provincial Commissioner found himself in obvious difficulty, and I sympathise with him. H e pointed out that as the third class Court had, in fact, tried a case o f murder, that Court acted in excess o f jurisdiction, notwithstanding that in the result the accused had been found guilty o f manslaughter. The Provincial Commissioner not being certain o f the powers exercisable by him in these circumstances, pursued a correct course by referring the matter to this Court. Section 7 (2) o f the Criminal Procedure Code specifically prohibits the trial o f a charge o f murder by a Subordinate Court III, and i f any example were required o f the danger sought to be averted by this enact­ ment o f the Legislature, this case may be accepted as one. In consequence o f this excess o f jurisdiction, the proceedings in this trial must be declared null and void and the convictions and sentences are hereby quashed. It is further ordered that the three accused shall be retried before a Court o f competent jurisdiction. The Provincial Commissioner in his report invited attention to the record o f another case (156 A/I938), which seems to have been dealt with by the same Court the next day (the 18th March). In this case two accused persons, James Yakobo (aged 18) and Kaswaka William (aged 22), who are referred to in the penultimate paragraph o f the Magistrate’s finding in the previous case, were charged with assault committed on the deceased Chileki. T o this charge both accused pleaded “ guilty ” , and Vol. II] from their pleas “ I only kicked him once ” , “ I only hit him with my fist ” , and “ All our friends were doing the same ” , it is very apparent that this assault was part o f the transaction which resulted in the death o f the deceased. The Magistrate convicted the two accused and passed a sentence o f six strokes with a cane on the first accused (James); and imposed fourteen days I. H . L , on Kaswaka W illiam. Now it is obvious that i f it can be proved against a person that he took part with others in an assault which resulted in a charge o f homicide being preferred against one or m ore o f the party, such person should very properly be charged with the same offence. In these circumstances it is very difficult to understand how any magistrate or police officer could disregard his duty in such a matter, and proceed to deal with these two accused on the basis o f a charge o f common assault. In m y view a failure o f justice has occurred, but unless there is some move form ally on the part o f Crown, I do not see m y way to intervene at this stage. In the course o f ray examination o f the proceedings o f the Pre­ liminary Inquiry, there appear certain omissions and irregularities which indicate a persistent disregard o f the law o f practice and procedure. I f further proceedings are taken on the basis o f this Preliminary Inquiry, no doubt the Attorney-General will give consideration to the matter. t