IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation Case Number 687 of 2000
REPUBLIC
Versus
BILLY NAZOMBE
In
the Second
CORAM: D F MWAUNGULU (JUDGE)
Nayeja, Senior State
Advocate, for the State
Defendant, present,
unrepresented
Chisi, the official court
interpreter
Mwaungulu, J
JUDGEMENT
The judge who reviewed this matter set
it down to consider the propriety of a second count. The propriety of the
second count the judge queries depends on how this Court resolves the apparent
confusion in the proceedings in the lower court. The solution, however, is
undermined by that when this Court heard the matter on
There are two charges bearing the same
dates and relating to the same count. The first charge has a single count of
theft. The defendant never pleaded to it because the state amended the charge
to include a burglary count. The defendant, however, pleaded to the second
charge. On the defendant’s plea, the lower court thought the proper charge was
breaking into a building and committing a felony therein, an offence under
section 311 of the Penal Code. The prosecution acceded to this. The amendment,
it appears, was effected by alterations on the charge before the lower court.
In essence the alteration involved substituting the offences in the offence
section of the burglary count and substituting the name in the burglary count
with the word “building.’ The theft count was unaltered. The amended charge,
therefore, contained two counts. The court, however, decided not to let the
defendant plead to the amended charge.
There was, as the string of this
Court’s decisions, Goode v Republic (1971-72)
6 ALR (Mal) 461 and Republic v Petrol [1973-74]
MLR 346, show, everything proper about the court accepting the amendments. A
court may, by amendment, substitute a minor offence if the facts the
prosecution proffer are insufficient for the major offence. There is, however,
everything to say about the way the amendment was done and the procedure the
lower court followed after the prosecution amended the charge. The amendment
must be authenticated, must be clear when and by whom the amendment was made
and must indicate the page in the record containing the court’s amendment order:
R v Salimu (1923) 1 ALR (Mal) 572;
and Republic v Madeya [1987-89] 12
MLR 81. The lower court was oblivious to
this practice. Just as the lower court overlooked section 151 of the Criminal Procedure
and Evidence Code.
The lower court should not have done
what it did after accepting the amendment. The lower court knew that the
amended charge should have been read for the accused to plead to it. Instead,
the lower court took the view that because the amendments were not substantial,
it was not necessary to let the defendant plead to the amended charge. The
amendments were substantial. They introduced a different offence, albeit a
minor one. Section 151 of the Criminal Procedure and Evidence Code provides:
“(2) Where at
any stage of the trial before the court complies with section 254, or calls on
the accused for his defence under section 313, as the case may be, it appears
to the court –
(a)
that the charge is defective either in substance or form;
(b)
that the evidence discloses an offence other than the
offence with which the accused is charged;
(c)
that the accused desires to plead guilty to an offence
other than the offence with which he is charged,
the court may
make such order to the alteration of the charge, either by way of amendment of
the charge or by the substitution or addition of a new charge as it thinks
necessary to make to the circumstances of the case, unless, having regard to
the merits of the case, such amendments cannot be made without injustice.
(3) Where a
charge is so amended, a note of the order for amendment shall be endorsed on
the charge and the charge shall be treated for the purposes of the proceedings
in connection therewith as having been filed in the amended form.
(4) Every such
new or altered charge shall be read and explained to the accused.
(5) The court
shall thereupon call upon the accused to plead to the altered charge and to
state whether he is ready to be tried on such new or altered charge.
The lower court approached the matter from that the
amended charge should not be read to the defendant because the amendments were
not consequential and the defendant would not be prejudiced. The section just
quoted makes no distinction like one the lower court introduces. The section is
mandatory when there is an amendment. Every such new or altered charge must be
read for the defendant to plead to it. The question is not whether any
prejudice would follow from not reading the amended charge. The question is
whether there has been an amendment to the offence charged. Where there is
amendment to the offence, a plea to the original charge is not plea to the
offence as amended. The amended charge must be read to the defendant so that he
pleads to the new offence.
The question for this Court is what is the effect of
lack of pleading to an offence charged on the validity of the proceedings? All
reported cases in
The English cases of R v Boyle (1954) 38 Cr.App.R 11 and R v Ellis (1973) 57 Cr. App. R 571 consider
the situation where the defendant pleads guilty. In R v Ellis Edmund Davies, L.J., stresses the need for the defendant
to plead to the charge, that the defendant, not her counsel, plead to the
charge and that the defendant plead to all, where more are charged, offences:
“We think that the
only safe and proper course accordingly is to say, as we now do, that apart
from a few very special cases) it is an invariable requirement that the initial
arrangement must be conducted between the Clerk of the Court and the accused
person himself or herself directly, whatever may be the decision in relation to
cases where, as in Tasamalug . . .,
there is a change of plea in the course of it , though there also we express the strong view that it
is highly desirable that the same rule of practice should be
followed. Furthermore, if the indictment
contains several counts, each must be put to the accused separately and he
should be asked to plead to each in turn as it is put to him, the only
exception to this being that, if he pleads Guilty to the first of a pair of
alternative counts, the second need not be put-see Boyle (.1954) 38 Cr..App.R.111.
The
lord Justice then said:
“Then what
course should be followed if a verdict of Guilty is returned in proceedings
launched in breach of this basic requirement?
In Boyle (supra) all four
counts in the indictment were read together to the appellant. He was then asked to plead to the whole
indictment and he made a general plea of Guilty. While expressing disapproval of the procedure
adopted, the Court of Criminal Appeal nevertheless dismissed his appeal against
conviction, presumably on the ground that in all the circumstances there was no
room for doubt as to what plea the accused was, in fact, making in respect of
each of the counts. But Lord Goddard
C.J. there stressed the necessity to ensure “that there can be no doubt on how
the accused intends to plead”
The
Lord Justice, after suggesting that doubt there will always be where the
defendant is not given the opportunity to plead, quotes Lord Parker, C.J., in R v Boyle:
“Whether he was
or not, in the opinion of this Court does not matter. These questions of pleas must be dealt with
formally. It was never put to her and
she out of her own mouth never pleaded Guilty.
The only plea that remained on the record was the plea of Not Guilty….In
those circumstances she has never been tried … and the proper course in the
opinion of this Court is in her case to quash the conviction.”
In the present case the charge was not
read for the defendant to plead to it. The defendant never pleaded to the
amended offence. It is precarious to assume that because he intended to plead
guilty to the former offence, he would plead guilty to the later offence simply
because it was a minor offence. Under section 151 (4) of the Criminal Procedure
and Evidence Code the altered or amended charge should have been read to the
defendant and the defendant plead to it. Moreover it is clear the lower court
proceeded on a single count of breaking into a building and committing a crime
therein. The lower court overlooked the theft count to which the defendant also
pleaded guilty. The record does not suggest that the prosecution withdrew the
count. The court probably proceeded on decisions like R v Jali Cr.Rev. Cas. No. 255 OF 1957, unreported; R v Jackson Cr.Rev.Cas No.18 of 1961,
unreported; R v Louis (1961-63) 2 ALR
(Mal) 67; R v Thomas (1964-66) ALR
(Mal) 408; and R v Kaliyande [1990]
MLR 391. This Court doubted these decisions in Republic v Kayange Conf. Cas. No. 458 of 2000, unreported. The
earlier decisions were to the effect that the prosecution cannot charge the
substantive crime where the defendant stands trial for breaking into a building
and committing a felony therein. In this matter the defendant never pleaded to
the amended offence.
The Court has two options. The Court
can, without more, quash the conviction. Just as the court may set aside the
conviction and order a new trial. In the latter case, the subsequent court will
consider the sentence already served should there be a conviction. These
options base on the decisions in R v
Heyes (1950) 34 Cr.App.R. 161; and Young
v Young, unreported,
Made in open court this 29th
Day of May 2003.
D F Mwaungulu
JUDGE