R v Jali Kachipili (Criminal Review Case 1 of 1935) [1935] ZMHCNR 11 (31 December 1935)

90 V o. I] R. v. JALI KACHIPILI. A Cr im in a l R e v i e w C a s e o f 1935. Complaint made to the Police— no reasonable probability o f con v iction - summary prosecution— charge dismissed— no provision fo r ordering Public Prosecutor to pay costs o f accused person— duty o f Public Prosecutor in such circumstances to decline to prosecute. Where a complaint is made to the Police and, after investigation, it is evident that no Court would convict the person complained against, the Public Prosecutor should decline to prosecute, particu­ larly as, if the charge is dismissed, the Court dismissing the charge is not empowered to order a Public Prosecutor to p a y the costs o f the accused person pursuant to section 160 (2) o f the Criminal Procedure Code. The observation o f the Resident Magistrate and approval by F r a n c is, J. to the effect that a charge should not be brought in the absence of proof believed to be sufficient for conviction was followed in R. v. Muchuma 4 N . R . L. R . 64. See also R. v. Smith p. 146 post and R . v. K em pton p. 148 post. As to the award o f compensation against the Crown on the dismissal of a frivolous or vexatious charge see R . v. M cLennan Kumwembe 2 N . R. L. R. 108. Resident M agistrate, N d o la : I am bringing this case before the notice of the High Court not with any wish to criticise the Police, for whose work and fairness I have the greatest admiration, but in order to obtain an expression o f opinion by the Judge on a question which, I know, frequently exercises the minds o f police officers. Is it for a police officer to decide whether there is substance in a complaint brought to his notice I subm it that a junior or should the matter be decided by a Court ? police officer should not, where he is in doubt, take upon him self the responsibility o f deciding this question if there is a superior officer within reasonable reach to whom the matter can be referred, but certainly some officer ought to consider and decide whether there is any likelihood o f a conviction or not. No person should be brought into Court on any charge, trivial or serious, unless there is a reasonable probability that the evidence in support o f the charge will be “ sufficient ” ; to do otherwise is to expose members o f the public to the stigma o f prosecutions which are unwar­ ranted, and to waste the time o f the Court. I f my view is a right one, I hope that His Honour the Judge will bring this view to the notice of the Commissioner o f Police so that Euro­ pean police officers may have guidance in a matter which often causes them concern. [Vol. I Francis, J .: Record perused— I agree with the judgment o f the Magistrate. With reference to his request I should be glad if you would transmit it for perusal of Commissioner o f Police. . . . I I agree with the latter part of (the penultimate) paragraph and would observe that in view o f the protection especially given under section 160 (2) Criminal Procedure Code the Police should exercise scrupulous care in such matters.