R v Kalasa Mvula (Criminal Review Case 1 of 1935) [1935] ZMHCNR 10 (31 December 1935)

84 Vol. I] R. v. KALASA MVULA. A Cr im in a l R e v i e w C a s e o f 1935. Charge o f defilement o f girl under twelve years o f age (P enal Code section 119 (1)—further charge o f defilement o f fem ale idiot (P en al Code section 120) — misjoinder o f charges (Criminal Procedure Code section 127 (c)). Where a person is charged w ith defilement o f a girl and it is alleged that (a) the girl is under twelve years o f age, (6) whether under the age o f twelve years or not, she is an idiot, the tw o charges must be tried separately. The facts necessary to support a conviction for (a) defilement of a girl under twelve years o f age (Penal Code section 119 (1)) and (6) defilement o f an idiot (Penal Code section 120) are not the same and joinder o f the two charges under the Criminal Procedure Code section 127 (c) is not permissible. The facts necessary to prove the first charge are (i) defilement, (ii) age o f the girl under twelve years, whereas to p rove the second charge it is necessary to show (i) defilement, (ii) idiocy o f the female, quite apart from the question o f age. For further cases on the subject o f p roof o f age in a charge of defilement see R. v. Sondas Mawa Chundaponde 2 N . R . L . R . 106; R. v. M arko M ulefu 4 N . R . L . R . 240; Diam ond K apw epw e v. The Queen 5 N . R . L . R . 168 (in which the observation in the present case at p. 85 that “ the question o f age in a charge o f this description is o f the greatest importance, and must be proved, and moreover, proved beyond reasonable doubt ” was approved and followed); R. v. Samson Manuwa 5 N . R . L . R . 176; R . v. J ovan P h iri 5 N . R . L . R . 324. Section 127 o f the Criminal Procedure Code was repealed and replaced b y Ordinance No. 28 o f 1940. The relevant section is now section 127A. F ran cis, J .: With reference to Case N o. 1/1935, Class I I Court, Petauke. This case having been referred for confirmation o f sentence, I have found it necessary to intervene. As a result o f m y examination I have written the judgment in draft hereto annexed. I should be glad if you will transmit this to the Attorney-General with a view to giving him the opportunity, should he desire, o f supporting the conviction or, in the alternative, o f making any other submission which he considers expedient. As I am aware that at present both the Law Officers are heavily engaged, I have written m y judgment without, in the first place, inviting the Solicitor-Generals assistance by way o f appearance. [Vol. I This case has presented difficulties which have given trouble. The first difficulty is experienced in deciding whether the age of the child Kachere has been proved in accordance with the law. The evidence given by her mother in this respect is as follows: “ Kachere was born when we reaped the ground-nut crop after the year of the bad famine when Bwana Thornicroft had left Petauke.” This is all; however, following the mother’s (Pando) testimony, is a note by the Magistrate as follows: “ It is within the knowledge of the Court that there was a bad famine in the Petauke District in the year 1922; that one has not been experienced since that date and that Mr. Thornicroft retired from the post of Assistant Magistrate at the end o f 1920. The age o f Kachere is therefore given as eleven years and ten months and this age is in accordance with her appearance.” In his judgment the Magistrate notes that it is difficult to ascertain the ages o f natives as no record is kept; he repeats that the famine o f 1922 and the retirement o f Mr. Thornicroft from this Court are both events within his knowledge, and in consequence holds that the date o f the child’s birth is therefore established. The Courts are permitted to take judicial notice o f certain matters, which, in any text book on the law o f evidence, are fairly well and suffi­ ciently detailed. For instance (Taylor on Evidence, sections 17 and 18): The course of nature and of time; territorial divisions of the country; the heads o f Government departments; the days o f special fasts; the date and place of the sitting o f the Legislature and of its Acts; and (Powell on Evidence, 9th Ed., p. 146), “ Certain facts so well known But that the Court takes judicial knowledge o f them without proof such must be “ public events universally known or within the common knowledge of the great majority ” . The law o f evidence is, in this country, the same as in England, and I am afraid judicial notice may not be carried to the extent proposed in this case. The facts (a) that there was a famine in Petauke in 1922 (or that it happened two years after Mr. Thornicroft’s retirement), and (b) that Mr. Thornicroft retired in 1920, are incidents which do not come within I do not think the rule above referred to, and must therefore be proved. I would be wrong in saying that in the preparation o f the case against the accused these facts were capable o f proof. To allow the Petauke Court to extend the rule o f law in this manner would be to permit on some subsequent occasion in another Court “ judicial knowledge ” of (say) the departure o f the Southern Express to Cape Town. The question of age in a charge of this description is o f the greatest importance, and must be proved, and moreover, proved beyond reasonable doubt. In my opinion It is not sufficient to note as an excuse for a it has not been so proved. deficiency in the case for the prosecution, that “ it is difficult to ascertain the ages o f natives, etc.” The requirements o f the law are to be strictly Vol. I] observed, and if it be impossible to adduce the standard o f p ro o f required to secure a conviction, then the authority m oving in the matter should consider his position vis-a-vis the penal law o f the country. For this reason alone, the conviction and sentence on the charge under Penal Code section 119 (1) must be quashed. There are other objections in connection with the trial, on w hich it is unnecessary to dwell. There now remains the second charge “ carnal knowledge o f an idiot ” , contrary to Penal Code section 120. There are three points on which decisions are required: (a) Is the offence o f carnal knowledge o f an idiot (section 120) a distinct offence from that o f carnal knowledge o f a female under 12 years o f age ? (b) Should this offence have been separately charged (this refers to the first part o f section 127 Criminal Procedure Code); and if so— (c) Should it have been separately tried or, is its joinder with the offence charged under section 119 saved b y any o f the excep­ tions to section 127 Criminal Procedure C ode; and finally— W hat is the effect o f a trespass against the decisions as to points (a), (6) and (c) above ? Section 127 derives its origin from sections 233, 234 (1), and 235 (1), 236 and 239 o f the Indian C. C. Procedure, and consequently Sohoni’s Code of Criminal Procedure can quite conveniently, and I think authori­ tatively, be referred to in elucidation o f the law o f joinder and misjoinder under the Northern Rhodesia Law. A t p. 546 in Sohoni (12 Ed.) there is to be found a very fair indication o f the meaning o f the expression “ distinct offence ” , reading as follows: “ I understand when tw o offences have been com m itted and each o f these two offences has no connection with each other they are distinct offences.” — Per Shar fuddin, J. (19 C. W . N . 972). Under the notes to section 233 several illustrations are given o f what are, and are not, distinct offences. In m y view the answer to the question para. 9 (a) is that the offence is a distinct offence, and should have been charged and tried separately unless covered b y exception (c), the only exception which apparently can be applied. Now under the notes to section 236 I. P. P. C. (corresponding with N . R. C. P. C. section 127 (c)) it is distinctly stated that that section does not apply to “ distinct offences ” , but to offences o f the same kind which differ only in degree; the difference and degree depending upon some added circumstances o f aggravation. Moreover the section applies only where the application o f the law to the proved facts is doubtful (cf., the words in the second line o f section 127 (c), “ I t is doubtful which o f In other several offences,” etc.), and not where the facts are doubtful. [Vol. I words section. 127 (c) N. R. C. P. C. applies to cases in which the law applic­ able to a certain set o f facts is doubtful by reason of the nature o f the single act done, and in which it is charged that the act constitutes one or more offences, the doubt being on a matter o f law only. To explain this, had the accused been charged with (a) Carnal knowledge o f a girl under 12 years; or in the alternative with (6) Indecent assault, this would have been a proper joinder under the exception. In this case I see no room for doubt as to the facts sought to be proved. The case against the accused was that he had had carnal know­ ledge o f a girl charged to be under 12 years of age who incidentally, it was further alleged, was an idiot. The circumstances being thus I must hold that there has been misjoinder, an irregularity which is not cured by the application o f Criminal Procedure Code section 323, and in conse­ quence the conviction and sentence on the second charge is likewise quashed. Apart from the danger o f misjoinder (the point is referred to on p. 5 Judicial Circular 1/34), I cannot see the necessity o f lumping charges like this against an accused person. Before launching proceedings, the prosecutor representing the Crown, must have been aware o f the liability o f the accused, on conviction o f the substantive offence, to heavy punish­ ment, and the Court in accepting a double charge must have realised that no extra punishment could lawfully have been imposed on that In the circumstances, therefore, the addition savours much of charge. “ loading” the case against the accused; it is a proceeding frowned against by this and any other High Court and when it results in two convictions each accompanied by punishment, there is a trespass against Cap. 1, section 12. It has not been necessary to go into other phases o f this case. Were it so, there would have been certain difficulties to be discussed with regard to (a) hearsay evidence—the record is full o f it— and how far such evidence weighed with the Magistrate; (b) the proof o f imbecility o f the child; and (c) whether there is sufficient proof that the accused knew o f that imbecility. In my view there is sufficient case against the accused to stand his trial again, and accordingly I order a retrial on the second charge. I express the hope that on such occasion the Magistrate will apply himself to the question o f “ sufficiency o f proof ” . While yet in draft my judgment was transmitted to the Attorney- General to afford him the opportunity o f making any representation he might have deemed expedient. I have received an intimation that he has no comments to offer.