IN
THE HIGH COURT OF
PRINCIPAL REGISTRY
CONFIRMATION CASE NO.
458 OF 2003
The
Republic
Versus
William
Moses Kayange
From the Third
Kalaile, State Advocate for the State
Defendant, present,
unrepresented
Kamanga, Recording Officer
The judge who
reviewed this matter set it down for this Court to consider the propriety of
combining the theft count in an indictment for breaking into a building and committing
a felony there, an offence under section 311 of the Penal Code. The reviewing judge also thought that the
sentence should have been enhanced. When
I heard the matter on
The factual
complexion of this case is not of much consequence. It is unnecessary therefore
to recount all the evidence that there was in the court below. For our purpose if suffices
to say that on
The reviewing
judge’s remarks must be based on the case of R v Louis (1961 – 63) 2 ALR (Mal)
67, the first reported case on the matter.
In that case ……………… acting J., followed the
earlier unreported cases of R v Jali Cr. Revision Cas. 255 of
1957 and R v Jackson Cr. Revision Cas. No. 18 of 1961. Both these cases are not reported. I have not had a chance to read them. My not reading the two unreported cases might
cause prejudice my reason on the matter.
……………. Acting J., put his reasoning
subsequently in the passage that I should quote:
“The first comment I want to make in this case is that, on the first
count, no intent was alleged in the charge, but there is a much more serious
criticism to be made. It has been laid
down time after time by this Court that the offence of breaking into a building
and committing a felony therein is laid down in 309 of the Penal Code as one
offence and that practice whereby burglary and house breaking followed by
theft is to be laid as two separate charges does not apply to offences under
section 309. I refer the learned
magistrate to R v Jali and R v
There is a problem
with the reasoning, which I consider latter.
The same principle
seems to have been laid in the case of
“It must be observed that the second count in this case was
misconceived. Section 309 of the Penal
Code Cap.23, unlike the section relating to house breaking, creating an omnibus
offence, namely, breaking into a building, e.g. a school house, warehouse,
store, office, garage, etc, and committing a felony therein. In this instance the felony specified was
the theft of a bicycle. It was
squafluous. Therefore, and illogical to
include a second count the particulars of which ………….. the
theft of the very same machine. It is
clear in other ways that the accused should have been charged on the first
count only.”
The most recent
decision on the matter is a case of Republic v Kaliyande (1990) 13 MLR
391. this was a
decision of Unyolo J., as he then was.
The learned judge did not refer to
“It was not disputed a grocery was
broken into a bicycle was stolen therein.
Actually the facts disclose a single offence of breaking into a building
and committing a felony therein contrary to section 311 (1) of the Penal
Code. It was therefore not quite in
order to charge the accused with two offences as was done namely the offence
under section 312 …………….as read with section 278.”
Before resolving
the issue that the reviewing judge raised, it might be useful to give the
history of this species of offence. The
offences of breaking into a building and committing a felony therein,
housebreaking, and burglary have in interesting history. It is clear that both in the Penal Code ,Cap. 23 of the Laws of Nyasaland,
1957 the precursor to the Penal Code, Cap.
Reading all these
judgments together, it seems the prosecution is discouraged from charging the
offence committed in the building together with the offence under section 311
(1) of the Penal Code because section 311 of the Penal Code creates one
offence. The gist of reasoning is that
the offence cannot be split into two.
The suggestion being that a prosecutor who charges under section 311 and
the offence which was committed in the building splits the offence under
section 311 into two. There are problems
with this reason. The illogicality and
superfluosity which Lord …………. Attributes to the practice rejected are more
pronounced in the contrary suggestion.
In my judgment there is no split.
The fallacy in the contrary suggestion is that the defendant has not
actually committed the other offence in the building. The defendant has actually committed the
other offence in the building. The
prosecutor could choose to charge the particular offence committed in the
without a recourse to section 311 of the Penal Code. There is no obligation on the prosecution to
charge the breaking into the building and committing the felony therein
offence. Just as there is nothing to bar
the prosecutor from charging the defendant with the offence actually
committed. The question therefore is
whether there is any principle in which the prosecutor can be barred from
charging the defendant with the offence under section 311 and the actual offence
committed.
The answer to the question
we have just posed depends on the role and powers of a prosecutor on preferring
charges and the role of the court faced with an indictment from the
prosecutor. In my judgment what offences
an offender will be prosecuted for before our courts is a matter entirely in
the discretion of the prosecutor.
Equally, subject to the powers of amendment, and the need for certainty,
clarity and the desire to do justice, matters of indictment are entirely in the
purview of the prosecutor. The courts
only require as a matter of duty that the indictments be accurately and
reasonably drafted. Consequently,
setting aside for a moment situation where the offence has not actually been
committed, there are several scenarios that could be analysed and a distant
rule be made for each one of them. The
reason for excluding the scenario where the offence has actually not be committed in the building is that the offence under
section 311 of the Penal Code requires that such an offence be committed in the
building. Where therefore it is clear to
the prosecutor that the offence has not been committed, the prosecutor cannot
charge the defendant with breaking into a building and committing a felony
therein or the offence allegedly committed in the building. There are therefore several scenarios where
the prosecutor is sure that the offence was committed.
The first situation
is where the prosecutor decides to charge the defendant with the offence
actually committed in the building. One
of the reasons for this would be a rule expressed by Lawton LJ. In R v Ambrose
57 Cr. App. R 538 at 540 where he said and I quote:
“The court wishes it to be clearly
understood that those who draft indictments should use common sense and should
not put into indictments charges which are of a trivial nature. Not only is it unfair but it also tends to
impede the doing of justice on more important aspects of the indictment.”
The Prosecutor,
where the offence committed in the building is more serious than breaking into
a building and committing a felony therein, may decide to charge the
substantive offence committed in the building.
There matter is entirely in the prosecutor’s discretion. The court has no power, subject maybe in the
magistrate courts to section 254 of the Criminal Procedure and Evidence Code to
interfere with the prosecutor’s decision.
In that scenario the court during trial on all on appeal cannot fault
the trial court’s decision to proceed on the charge of the offence committed in
the building on the basis that the defendant committed an offence under section
311 of the Penal Code irrespectively of whether the offence actually charged is
minor or greater than the offence under section 311 of the Penal Code.
The second scenario is where the prosecutor weighing everything else decides that he will only charge the defendant with the offence of breaking into a building and committing a felony therein. Once again in this respect it is the matter entirely within the discretion of the prosecutor. If the court convicts or acquits on this charge the court cannot interfere with the discretion on the basis that a minor or greater offence would have been charged instead of the offence under consideration. Just as in relation to the first case, the defendant can properly plead convict or auterfois acquit in case the prosecution decides latter to try the defendant for an offence, not earlier joined, which could have been charged on the same facts. The prosecutor will be held to his election.
The third scenario,
which is the one that occurred in this case and all the other cases cited
earlier, is where the prosecutor decides to charge both the offence under
section 311 (1) and the distinct offence committed in the building. The decisions of this court, decisions
spanning about four decades, are to the effect that this is impermissible. There are a lot of difficulties of course to
differ with a rule of such a pedigree.
On the other hand the fact that the situation rears means that, whatever
rule is postulated, the rule must be based on principle and practicality. It is the illogicality
of the rule as stated, which has caused me concern and necessitated
re-examination of all the previous decisions.
The matter, in my
judgment, should be approached from three premises. The first premise is the de minimise
principle from Lord Justice Lawton in R v Ambrose mentioned
earlier. The effect of this rule is to
require a measure of circumspection on the part of the prosecutor when
preferring a charge. The rule requires
the prosecutor to apply the de minimise principle. The rule requires the prosecutor to evaluate
where, like here, so many crimes are possible from the factual complexion, to
weigh and vet the offences to be charged in a way in which there is no
injustice resulting thereby not only to the defendant but also to the public
interest which wants those who offend to be brought to book. In the context of an offence under section
311 this requires a consideration of whether the offence under discussion is
more serious in complexion when seen from the perspective of section 311 or the
particular offence. One would lay a rule
of thumb, a rule of prudence that it is a more serious offence that should be
preferred to the trivial offence. Where
for example the offence committed in the building can properly be accommodated
in terms of punishment under section 311, the prosecutor must exercise his
election in favour of proceeding under section 311 without recourse to the
offence actually committed in the building.
The election no doubt will depend on the nature of the offence and the
evidence in support of the case. The
evidence might turn out to be the critical consideration in a particular
case. The prosecutor must be able to
anticipate where he charges the offender under section 311 the situation where
the breaking and entry is not proved and the court will be called upon to
consider the offence that was committed within a building. Where the evidence shows that the offence was
not committed, no doubt a conviction under section 312 of the Penal Code would
still be minor to the offence under section 311. The court can properly convict of that
offence if the evidence shows that offence suggested in the indictment under
section 311 is not proved. There will be
practical difficulties where prosecutor has not charged the offence that was
committed in the building separately where evidence to the court shows that
there was no breaking and entering but the offence was committed. At that point it will be more difficult for
the court to convict of the offence actually committed where in law and in fact
that offence is not minor to the offence under section 311 of the Penal
Code. A typical example is where the
defendant was charged under section 311 and the offence is rape or some other
offence attracting life imprisonment or the death penalty. In those circumstances it will be very
difficult for the court to convict on the offence actually committed if it was
not included in the charge. The matter
is therefore of serious consideration for the prosecutor. On that score a rigid rule as suggested by
the authorities may work out injustice to the victim and the public interest.
The second premise
in which this matter might be answered is by looking at the powers of the court
faced with an indictment like the one here.
While under section 254 of the Criminal Procedure and Evidence Code at
the close of the prosecution case the court could introduce minor or greater
offences than the one actually in the charge, generally courts have very little
power, unless of course the indictment is frivolous and vexatious to interfere
with the offences the prosecutor raises in a charge. Generally, courts, however, also have power
to ensure that there is no injustice arising from the form and content of a
charge. Where, however several offences
are created by the same factual situation, Court has been reluctant to
interfere with the crimes the prosecutor prefers against the defendant. On a robbery, for example, the prosecutor can
in one charge include the offence of possessing a firearm, grievous bodily harm
and robbery. That is a discretion that
the court seldom interferes with.
Thirdly the defendant has committed an offence under section 311 he will
also have committed the particular offence mentioned in the indictment. To suggest that because the defendant has
committed the offence under section 311 therefore he cannot be charged with the
distinct offence would also suggest that the other offence has not been
committed. I prefer to think that the
other offence has also been committed albeit in the building. It is a matter entirely in the discretion of
the prosecutor whether he will charge a particular offence or a combination of
offences. While as courts, as these
previous decisions shows, deprecate the practice, there is nothing in the
Criminal Procedure and Evidence Code or in the inherent powers of the court
where a factual complexion raises multiple offences for a court to interfere
with the prosecutors election of the offences he wants
to prefer against a defendant. It would
be up to the court at a sentencing stage to consider either by way of ordering
the sentences to run concurrently or using alternative sentences or alternative
imprisonment to deal with the situation.
In a situation where the defendant
breaks into a building and commits a felony therein it is in the discretion of
the prosecution whether or not to include the crime actually committed in the
building. It is not an abuse of the
process of the court to include the substantive offence with breaking into a
building and committing a felony therein.
Where the offence is so included the court must try the charge and deal
with the sentence as justice requires.
Made in
D F Mwaungulu