R v P.C. Nicolai (Criminal Appeal Case 48 of 1941) [1941] ZMHCNR 14 (31 December 1941)

[Vol. II R . v. P. C. NICOLAI. Criminal Appeal Case No. 48 of 1941. Sugar Prices Order, 1940—mistake in sale of sugar no defence. It is no defence to a charge to allege that the offence was com­ mitted in error. I f the Court is satisfied that the offence was com­ mitted unintentionally this can and should be taken into considera­ tion when deciding on the sentence. As to the necessity o f establishing mens rea in statutory offences, o f late years the tendency o f the Courts has been to attach less importance to this when the offence is the construction o f an absolute prohibition, see Gardner v. Akeroyd 1952 2 A. E. R. 306. Law , C. J. and R obinson, J .: It is clear from the evidence that the accused sold white sugar at a price in contravention o f the Sugar Prices (Mongu-Lealui District) Order, 1940 (Government Notice No. 230 o f 1940). In defence, the accused says that this was done in error, and quite unintentionally, and that she took steps immediately to rectify the mistake. This plea cannot avail her in law, because the Order in question imposes an absolute restriction against sale above a particular price, and it is immaterial whether the accused knew or did not know she was contravening this prohibition. (See Hobbs v. The Winchester Corporation (1910) 2 K . B. P., p. 471.) In our opinion, therefore, the Magistrate was right in finding the accused guilty o f the offence charged. The question o f sentence remains to be considered. The accused appears to have taken prompt action to correct what we believe to have been a mistake on her part. W e feel, therefore, that a fine o f 10s. would have been amply ade­ quate in the circumstances, and we substitute this sentence for the sentence o f £10 imposed by the Magistrate. The difference will be refunded to the accused.