R v Sondas Mawa Chundaponde (Criminal Review Case 29 of 1941) [1940] ZMHCNR 13 (31 December 1940)

106 Vol. II] R . v. SONDAS MAWA CHUNDAPONDE. Cr im in a l R e v ie w Case N o. 29 o f 1941. P enal Code section 119 (1)— defilement o f girl under 12 years o f age— explaining charge to accused—proviso to section should be explained to accused. In the judgment hereunder it was held that as Africans do not norm ally know what is meant by “ age ” the charge should be explained to an accused by references other than merely to years of age, e.g., reference can be made to the state o f puberty. In addition to this the terms o f the proviso to the section should be explained to the accused. For further cases on the p roof o f age in a charge o f defilement see R. v. Kalasa Mvula 1 N . R . L . R . 84; R. v. M arko Malefu 4 N . R . L. R . 240; Diamond Kapwepwe v. The Queen 5 N . R . L. R . 168 (in which the observation in the present case that the proviso to the section should be explained to an accused before his plea is taken was approved); R. v. Samson Manuwa 5 N . R . L . R . 176; R. v. Jovan Phiri 5 N . R . L. R . 324 (in which the observation in the present case that the proviso to the section should be explained to an accused before his plea is taken was approved bu t the suggestion in the present case that reference can be made to the state o f puberty was not followed). Law , C . J., and R ob in son , J .: The accused was charged under section 119 (1) Penal Code with having unlawfully and carnally known one Kunda, a girl under the age o f 12 years.1 In reply to this charge the accused said “ I admit it, I did it ” . The M agistrate accepted this plea as one o f guilty and recorded it accordingly. The prosecutor stated to the Court that the girl was just under 11 years old. The question for consideration is whether the plea was an unequivocal one o f guilty. It was pointed out by the learned Judge in the case o f R ex v. Kalasa Mvula, Law Reports for Northern Rhodesia, 1931-1937, page 84, that Courts are permitted to take judicial notice o f certain well-known facts without proof. It is a matter o f common knowledge, and therefore within our judicial notice, that uneducated natives in this Territory, such as the accused, do not reckon an individual’s age by years. Furthermore, that African children mature earlier than European children and often look older than they really are. Though we have the report o f the Magistrate that the accused pleaded guilty to the charge after the interpreter had explained what was meant by “ under 12 years o f age ” , we are not satisfied that any explanation by reference to age could possibly have conveyed to him the exact stage o f adolescence reached by the girl. Furthermore, and again bearing in m ind that the accused is a native, we consider that the proviso to the section is so m uch involved in the offence charged that it should have been explained to the accused before his plea 1 The relevant age is now 16 years.—Editor, [Vol. II was taken. This practice should be followed in similar cases except where it is palpably obvious that the child in question is considerably below the age o f 12 years. For these reasons we are o f opinion that the accused’s plea to the charge should be taken again. In these circumstances we quash the conviction and set aside the sentence and direct the retrial o f the accused according to law.