The People v Rex Msichili (HNA/173/1970) [1970] ZMHC 13 (9 October 1970)

THE PEOPLE v REX MSICHILI (1970) ZR 90 (HC) HIGH COURT GARDNER J I 9th OCTOBER 1970 5 HNA/173/1970 Flynote Criminal law and procedure - Costs - Award of in a criminal prosecution - Court to satisfy itself no reasonable grounds existed for instituting prosecution. Headnote The respondent was prosecuted in the magistrate's court on three 10 counts of permitting customers to drink beer on his premises, for which he held a retail liquor licence. The court acquitted the respondent on the public prosecutor telling the magistrate that he had no objection to the acquittal. Counsel for the respondent asked the court to grant his client costs and an award of K50 was made. The State appealed on the ground 15 inter alia that the magistrate erred in law in awarding costs in view of the absence of any prosecution evidence before court. Held: ■ ■ (i) Under s. 160 of the Criminal Procedure Code, the court can award costs where it is satisfied that there were no reasonable 20 grounds for instituting the prosecution. ■ (ii) In order to establish that no reasonable grounds existed for instituting the proceedings, the court could ask the prosecutor to state the facts upon which the proceedings were instigated. (iii) In the instant case the facts showed that the respondent was 25 not privy to the offence. ■ Cases cited: (1) The People v J. L. Upton, Selected Judgment 4/65. (2) Bath v White (1878) 3 CPD 175; 42 JP 375; 30 Digest (Repl.) 94. I Legislation referred to: 30 Criminal Procedure Code, 1965 (Cap. 7), s. 160. Liquor Licensing Ordinance (Cap. 429), s. 42 (1). State Advocate, for the appellant. Lloyd, Jones & Collins, for the respondent:. Judgment Gardner J: In this case the State appeals against an order of 35 the Senior Resident Magistrate, Ndola, made on the 11th May, 1970, awarding costs against the State. The facts of the case are that the respondent was charged on three counts of permitting customers to drink beer on his premises, for which he held a retail liquor licence. The court record indicates that the public prosecutor told the learned senior resident 40 magistrate that he had no objection to an acquittal, that Mr Stacey for the respondent asked for an acquittal and as result the learned senior resident magistrate acquitted the respondent. Thereupon, although the record does not specifically say so, Mr Stacey asked for costs on the grounds ■ ■ 1970 ZR p91 GARDNER J that the respondent was not privy to the offence and therefore no prosecution should have been instituted. The learned senior resident magistrate made an order for costs against the State in the sum of K50.00. I The learned judge dealing with matters not relevant for this purpose continued: 5 Mr Kawamba's other ground of appeal was the first ground, namely that the learned senior resident magistrate erred in law in awarding costs against the appellant in view of the absence of any prosecution evidence before the court. Before an order as to costs can be made a magistrate has to, ascertain 10 whether there were reasonable grounds for instituting the proceedings, in so doing he may find out the ■ ■ ■ ■ answer to the question by asking the public prosecutor to state the facts upon which the proceedings were instigated. I am satisfied from Mr Stacey that in this case the learned senior resident magistrate did ask the public prosecutor if he could state any 15 facts and that the public prosecutor, because he did not know the facts, was unable to give them to the court. For reasons which I shall give later in this judgment, the court was then in position to make an order as to costs because it was not satisfied that there were reasonable grounds for instituting the prosecution. There is no need for there to be sworn evidence 20 to enable the court to ascertain the reasons for bringing the prosecution. If there is a serious dispute between the public prosecutor and counsel for the defence it might be necessary to call evidence on oath to resolve the dispute, however, it is the practice of these courts to accept the word of the public prosecutor and counsel with regard to matters such as the 25 question of costs. This ground of appeal must therefore fail, but in order to ensure that there had been no miscarriage of justice I called for counsel to inform me upon what evidence the prosecution was originally brought, in order that this court could ascertain whether the reasons for ordering 30 costs against the State were valid. Mr Kawamba filed, with my leave, an affidavit by Constable Machiswe, who investigated the case. In his affidavit the deponent deposed that he found three boys on the steps of the respondent's bottle store each drinking a pint of beer. He found that the licence displayed at the bottle 35 store was a retail liquor licence in the name of the respondent and he thereupon went to see the respondent who was in his butchery about eight paces away from the steps of the bottle store. On being told that he was going to be reported for allowing customers to drink beer on the premises the respondent replied, "Before a man dies he should say 40 something. The Government should put a law that even those drinking should also be charged." Section 42 (1) of the Liquor Licensing Ordinance, under which the respondent was charged, reads as follows: ■ ■ ■ "Where a person having purchased intoxicating liquor from 45 premises licensed under an off - licence, drinks such liquor (a) in the licensed premises; or (b) in premises adjoining or near the licensed premises ■ GARDNER J that belong to the licence holder or are under his control or used by his permission; or (c) on a highway adjoining such premises; then, if the drinking is with the privity of the licensee such licensee shall be guilty of I an offence." 5 It is essential therefore to secure a conviction under that section that there be evidence that the drinking on or near the premises was with the privity of the licensee. The definition of privity in the S. O. E. D. at sub-definition (4) is as follows: 1970 ZR p92 "The fact of being privy to something; participation in the 10 knowledge of something private or secret. Usually ■ ■ implying concurrence or consent. Private knowledge or cognisance." The question of privity has also been considered in the case of Bath v White (2) in which it was held that in certain circumstances even knowledge that people were drinking on a highway near a bottle store was not sufficient to 15 secure a conviction of the licensee, but if there had been evidence that the licensee connived at the drinking the conviction might have been upheld. I agree with that decision and applying the definition in the S. O. E. D. I find that it is necessary, in order to secure the conviction of a licensee, to prove that he had knowledge of the offence and that the offence was 20 committed with his concurrence or consent. I say that there must be concurrence or consent because of the obvious case where a customer may buy a bottle of beer and take out a bottle opener, open the bottle of beer and drink it before the eyes of the licensee before the licensee has a chance to stop him. In 25 this case on the evidence which was available to the prosecution, it was quite clear ■ that the prosecution were completely unable to prove that the drinking of beer on the steps of the bottle store was with the licensee's knowledge and consent. The statement by the respondent to the police that those drinking should also be charged is not in my view an 30 admission that the respondent knew about the drinking before he was told by the police. He was, therefore, not privy to the drinking of beer on or near his premises ■ ■ ■ and in the words of Charles, J., in The People v Upton (1) the prosecution was "doomed to failure". In these circumstances therefore even had the prosecutor before the magistrate exercised his right 35 to address the court on the question of costs, he would have been unable, in the words of the proviso to s. 160 of the Criminal Procedure Code, to persuade the magistrate that he should, "consider that there were reasonable grounds for making a complaint". Section 160 makes it lawful for the magistrate to have made an order for costs against the 40 State unless he considers there were such reasonable grounds and this appeal is therefore dismissed with costs against the State. In order that there shall be no misapprehension about the quantum of costs, counsel may address me thereon. Appeal dismissed ■