R v John Siwakwi (Criminal Review Case 268 of 1939) [1939] ZMHCNR 14 (31 December 1939) | Abduction | Esheria

R v John Siwakwi (Criminal Review Case 268 of 1939) [1939] ZMHCNR 14 (31 December 1939)

Full Case Text

(Vol. II R . v. JOH N SIW AKW I. Criminal R eview Case N o. 268 of 1939. Penal Code section 228—abduction—essential ingredients o f offence—reply to charge. T o convict o f abduction it is necessary that the abduction should take place with intent to cause the victim to be secretly and wrongfully confined. Unless accused pleads guilty to all the ele­ ments o f the offence a plea o f “ not guilty ” should he entered. R obin son , A . C . J.: This case was received for confirmation o f sentence on 30th October. On looking through it, it appeared to me that the case against the accused had not been proved. The charge was laid contra section 228 Penal Code and although the wording on the charge sheet was that John Siwakwi did abduct one Maliya Namuchimba with intent to cause her to be wrongfully confined, the section o f the Penal Code requires more than that. An essential ingredient in the offence is that the abduction should take place with intent to cause the victim to be secretly and wrongfully confined. I could find no evidence o f any secrecy and therefore the case record was sent to the Attorney-General to ask whether he wished to support the conviction. He has now replied that he does not desire to do so. The conviction is therefore quashed and the prisoner must be released forthwith. The Magistrate should take the greatest care to see that all the ingredients making up the offence are clearly set out in the charge and If, in answer to this charge, the made clear verbally to the prisoner. only reply was “ I took her away ” , a plea o f not guilty should have been entered. The “ intent ” forms the whole gravamen o f the offence and that was not pleaded to. I f a full admission is made in answer to the charge and the Court is satisfied that the prisoner fully understands the true im plication o f the offence and the facts which he freely admits do constitute that offence, then the actual words used by the prisoner in answer to the charge (section 187 (2) Criminal Procedure Code) must be recorded and they can be construed by the Court as a plea o f guilty. The facts should then shortly be set out and no evidence taken.