BERE J: The accused in this matter
pleaded to and was convicted of the offence of contravening s 113(1)(a)(b) of
the Criminal Law (Codification and Reform) Act [Cap 9:23].
Upon
his conviction the accused was sentenced to a straight term of 2 years
imprisonment.
Two
issues have exercised my mind in this matter
The
manner in which the conviction itself was secured as well as the sentencing
approach adopted in this matter are the two issues of major concern.
Ad Conviction
At
the conclusion of the canvassing of the elements of the offence the learned
magistrate recorded the following notes:-
“Q. Is this a free admission of the charge and
the allegations as read to you? – Free admission”.
It
will be further noted that when the accused was asked in mitigation why he
stole, the
accused retorted as follows:-
“I wanted to sell the property to
raise money to buy food. I had not been paid for 6 months. I sold the
pipes and raised $7000”. (my emphasis).
When
the Learned Magistrate wrote his reasons for sentence he took it upon himself
to enter the boxing ring by commenting inter
alia as followed;
“I do not believe you when you say
you had not been paid for 6 months. You would not have stayed on that job for
so long if you were not being paid”.
The above comments by the learned
magistrate were not as a result of any inquiry
carried out by the magistrate. No
evidence was sought through the public prosecutor to try and put to test the
issues raised by the accused person but the presiding magistrate took it upon
himself to counter the utterances made by the accused from a very uniformed
position (that is, on the party of the magistrate).
With
all due respect, it is clear to me that when the accused proffered to the
presiding magistrate the reason why he had committed the alleged theft, the
accused was not merely raising a very strong mitigatory factor but a possible
defence to the charge of theft.
It
occurs to me that the accused was at that stage raising either the defence of a
claim of right or that of a mistake of fact which defences could not simply
have been wished away at that stage but screamed for the court to record the
plea of not guilty in order to pave way for a fully fledged trial as provided
for by s 272 of the code.
For
the avoidance of doubt the section in question is couched in the following:-
“If the court, at any stage of the
proceedings in terms of section two hundred and seventy-one and before sentence
is passed –
(a)
is
in law guilty of the offence to which he has pleaded guilty; or
(b)
is
not satisfied that the accused has admitted or correctly admitted all the
essential elements of the offence or all the acts or omissions on which the
charge is based; or
(c)
is
not satisfied that the accused has no valid defence to the charge, the court
shall record a plea of not guilty and require the prosecution to proceed to
trial;
……….”
There
are separate requirements which must be satisfied before either a claim of
right or a mistake of fact can succeed as a defence. See the case of Stainer v Reginaand
S v Davy.
These
defences are best dealt with in a proper trial and not to be intuitively
dismissed by the trial court because of the nature of the inquiry that must be
carried out.
In
the instant case it was improper for the presiding magistrate to merely dismiss
the explanation tendered by the accused without carrying out a proper inquiry,
for in doing so he was offering himself as a witness without affording the
accused person an opportunity to cross-examine him or to test the verasity or
otherwise of his assertion or conclusion. Such an approach is wrong.
Ad Sentence
In
the unlikely event that I am wrong in making a finding that the explanation
tendered by the accused raised a potential defence, there is one other
monumental mistake which the presiding magistrate appear to have committed.
Assuming
that the accused person had gone for six months without being paid his salary
(as he stated to the presiding magistrate), surely this would have been a very
strong factor in mitigation which could not have by any stretch of imagination
justified the sentence imposed by the magistrate.
For
the above reasons I am unable to confirm these proceedings and with the
concurrence of my brother BHUNU J I make the following order-
1.
The
conviction and sentence are set aside.
2.
The
charge against the accused is remitted for trial de novo before a different magistrate
3.
In
the event of the accused being convicted, any period served in prison already
must be taken into account in the assessment of sentence
4.
Pending
the hearing of the matter the accused is to be released from prison.
BHUNU J: agrees, ……………………………
