Town Clerk, Livingstone Municipality v Sikolopani (Criminal Review Case 181 of 1941) [1941] ZMHCNR 4 (31 December 1941)

118 Vol. II] TOWN CLERK, LIVINGSTONE MUNICIPALITY v. SIKOLOPANI. Crim inal R eview Case No. 181 of 1941. Calling o f witnesses by court— Criminal Procedure Code section 139— accused cannot be convicted on evidence o f witness called by court after defence closed. In this case the accused was charged w ith being in possession of native beer. Only one witness was called for the prosecution and the accused then gave evidence denying that he had had any beer in his possession. The Court was apparently n ot satisfied and adjourned and the police were instructed b y the Court to investigate the case further. A t a later date the Court called three witnesses and as a result o f their evidence the accused was found gu ilty o f the offence. On review the H igh Court quashed the conviction on the ground that as the Court was not satisfied from the evidence adduced on behalf o f the prosecution and the defence that the accused was guilty, the accused should have been found n ot guilty and discharged. The Court has a right to call a witness n ot called b y either the prosecution or the defence and w ithout the consent o f either if it is o f the opinion that this course is necessary in the interests of justice, but in order that injustice should not be done to an accused, the calling o f such a witness after the case for the defence should only be done in cases where something has arisen on the part o f the accused ex improviso which no human ingenuity could foresee. (Archbold, Criminal Pleading, Evidence and Practice, 35th Edition, p. 585.) Law , C . J .: In calling witnesses after the accused had given evidence, the Court purported to act under section 139 Criminal Procedure Code. It seems, however, that such evidence can only be called ex improviso (B. v. Harris (1927) 2 K . B . p. 587 and D . Newark, 1934, V ol. I, Eastern Africa Court o f Appeal p. 162). W ithout that additional evidence it cannot be said that the Magistrate w ould have convicted the accused. In the circumstances, therefore, the accused was entitled to be acquitted. Accordingly the conviction for illegal possession o f beer is quashed and the sentence set aside.