R v Kena (Criminal Review Case 1 of 1935) [1935] ZMHCNR 9 (31 December 1935)

82 Vol. I] R. v. KENA. A Cr im in a l R e v i e w C a s e o f 1935. Arson, Penal Code section 294— going armed without lawful occasion, Penal Code section 72— two charges join ed in one trial—joinder of charges, contrary to Criminal Procedure Code section 127— conviction on second charge quashed. A native set fire to two huts in a village at night and disappeared; search was made for him without success bu t he reappeared early next morning carrying a bow and arrow, a spear and axe and threatened certain o f the villagers. He was subsequently tried (at one trial) on two charges, viz.: (a) arson, (b) going armed w ithout lawful occasion, and was convicted on both charges. In the opinion o f the trial Magistrate the burning o f the two huts one night and the going armed early next morning were two acts so connected together as to form the same transaction, but the High Court held on review that there had been a misjoinder of charges. Section 127 o f the Criminal Procedure Code was repealed and replaced by Ordinance No. 28 o f 1940. The relevant section is now section 127 A. F ran cis, J . : The arraignment o f the accused on these two distinct I do not charges and their determination at one trial was irregular. think the irregularity is to be considered cured b y the plea o f the accused. The two offences are not so connected together b y one series o f acts as to bring them within exception (b) o f the rule under section 127 Criminal Procedure Code. The result is misjoinder, a fatal objection. I propose quashing the conviction and sentence in respect o f the second charge, but before taking any step in the matter I desire that the Attorney-General be given the opportunity o f making any submission he deems expedient. As regards the first charge sentence is confirmed. In this connection it may be that m y order o f transfer, which erroneously included two charges, has led the Magistrate into error. This remissness on m y part is regretted; nevertheless two separate informa­ tions were filed which indicated separate trials, unless o f course one o f the exceptions in section 127, Criminal Procedure Code, applied. In the event o f the Attorney-General desiring to support the con­ viction please set the case down for hearing in Chambers. [Vol. I For the reasons given in my memorandum of 17th April I quash the conviction and sentence in the second charge. The Attorney-General has been given an opportunity o f being heard and it is understood that he does not desire to support the conviction.