On
scrutiny, the Regional Magistrate, in terms of section 58(3) (b) of
the Magistrates Court Act [Chapter 7:10],
referred the record in this matter to this court for review. He had
detected what he considered to be an anomaly. But, on perusing the
record, I detected a far more serious anomaly. It had previously been
raised by the trial magistrate - albeit in passing. But nothing came
of it. It seems the scrutinizing magistrate missed it.
It
was this.
From
the facts, the charge preferred against the accused, and which he was
convicted of, was relatively inconsequential. He should have been
charged with a far more serious offence. Here are the details.
The
accused pleaded not guilty to unlawful entry as defined in section
131 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]
(“the
Criminal Code”).
After a full trial, he was convicted of the offence and sentenced to
twelve months imprisonment which was wholly suspended for five years
on condition that he did not, during that period, commit an offence
involving dishonesty
for which, upon conviction, he would be sentenced to imprisonment
without the option of a fine. In the course of her judgment the trial
magistrate said this:
“The
State managed to prove that the [accused] did unlawfully enter into
the [complainant's] residence, and, further, went on to assault him
with a dangerous weapon i.e. [a] machete. [Accused] could have easily
killed [complainant] and the court is actually surprised why
[accused] was not even charged with [the] more serious offence of
attempted murder.”
Indeed,
the accused, from the facts, should have been charged with attempted
murder. At the very least, he should have been charged with assault
in terms of section 89 of the Criminal Code.
In
her reasons for sentence the trial magistrate said:
“The
court considered that this is a very serious offence which was
exacerbated by [an] assault with the use of a dangerous weapon.”
But,
in my view, it was rather the other way round. The unlawful entry,
under the circumstances, was inconsequential. The assault with a
dangerous weapon did not merely exacerbate a serious offence. It was
itself the
serious offence.
Here
are the full facts.
The
complainant was 30 years old. The accused was his uncle. They lived
in the same village. One night, around 23:00 hours, the accused,
armed with a machete, barged into the complainant's bedroom. The
door had been unlocked. The complainant said he had retired to bed.
The accused then started assaulting the complainant all over the body
with a machete. Colour photographs produced in court showed that the
complainant sustained several lacerations on various parts of his
body. He had shouted for help. Two of his relatives came to the
rescue. Together with the complainant they overpowered the accused.
They started walking towards the police station. Meanwhile, the
accused's daughter, who had arrived at the scene, but after the
accused had already been overpowered, had rushed to call the police.
Apparently, she had reported the matter as an assault on her father.
The police met up with the accused being escorted by the complainant
and his assistants. Blood from the complainant had spilled onto the
accused. The police assumed it had been the accused's blood. So
they arrested the complainant and his assistants. However, the
complainant managed to explain things out. It was then that the
accused was arrested.
Incredibly,
he was charged only with unlawful entry!
There
was evidence that the accused had previously assaulted the
complainant with a shovel. The reason for these assaults appeared to
be the belief, by the accused, that the complainant was stealing his
maize.
The
medical affidavit by the attending doctor rated the complainant's
injuries as serious. However, the affidavit had not been signed
before a Commissioner of Oaths. That was the one anomaly noted and
raised by the scrutinising magistrate. He said, in terms of section
278(11) of the Criminal Procedure and Evidence Act [Chapter
9:07],
the affidavit should not have been accepted as an exhibit…,.
From
the record, there is no doubt that even during the trial itself, the
weight of the evidence, comprising the witnesses' testimonies and
the exhibits, spoke of nothing but the assault. Very scanty attention
was devoted to the elements of unlawful entry as set out in section
130 and section 131 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] (the Criminal Code). Attention was wholly focused on
the assault. The medical affidavit, which the Regional Magistrate
scrutinised, was in relation to the assault, not the unlawful entry.
The pictures of the complainant, showing lacerations on his body,
were in relation to the assault, not the unlawful entry. The picture
of the machete had also been produced in court. It was a wicked
looking weapon. It was in relation to the assault, not the unlawful
entry. In the witnesses' testimonies there was repeated reference
to the amount of blood that had spilt from the complainant from the
cuts to his body. That had nothing to do with the unlawful entry.
Under
such circumstances, it defies logic why the State preferred such an
inconsequential charge, leaving out the more obvious, more glaring,
and more serious one.
Other
than merely making reference to the anomaly in her judgment, as
pointed out already, the trial magistrate did not check with the
State as to why the more serious crime had been ignored. On his part,
the scrutinising magistrate concerned himself with trivia. One would
have thought that his initial concern about a wholly suspended
sentence had been informed by the heinousness of the assault, not the
unlawful entry. But it seems that it was not the case.
I
find that the charge preferred against the accused was manifestly
inappropriate. It offends against one's notion of justice. In the
premises, whilst nothing else needs be done, I nonetheless withhold
my certificate and decline to confirm that the proceedings in the
court a
quo
were in accordance with real and substantial justice.
