R v J.H. Trolley (Criminal Appeal Case 1 of 1938) [1938] ZMHCNR 1 (31 December 1938)

4 Vol. II] R . v. J. H . T R O L L E Y . Criminal Appeal Case N o. 1 of 1938. Kidnapping—Penal Code section 226 -native servant conveyed beyond limits of Territory and thrashed beyond such limits—purpose o f con­ veyance beyond limits o f Territory. not explained— question whether consent to stick conveyance—conviction upheld on appeal. The facte and the law appear from the judgm ent hereunder. As to the procedure and form o f a case stated see The Town Clerk, Livingstone v. Jesse Field p. 191 post. Francis, C . J.: This is an appeal in the form o f a stated case, by John Henry Trolley from a conviction before the Subordinate Court, Class III, Livingstone, o f the offence o f kidnapping under Penal Code section 226. The appellant was sentenced to one day’s imprisonment with hard labour and a fine o f £10 or in default fourteen days I. H . L . The case was tried on the 6th January, and reserved judgm ent was delivered on the 11th January. The appeal came before this Court on the 10th March, and at the instance o f the respondent an adjournment was granted until the 17th March. On the conclusion o f the hearing judgment was reserved. Mr. Warner for appellant, and Mr. Williams for the respondent, Public Prosecutor. The facte noted as proved before the Court below, m ay briefly be set out as follows: On the morning o f the 27th Decem ber last trouble arose between Mrs. Trolley and a native named K uyu, em ployed as a lorry driver b y the accused. Prom his evidence it w ould appear that during the dispute Mrs. Trolley smacked his face. A sugges­ tion was put to K uyu in cross-examination that he thereupon retaliated and hit Mrs. Trolley. H e stoutly denied this, and it is curious to note that no evidence o f this retaliatory assault was adduced by way o f substantiating the suggestion; in fa ct no evidence at all was tendered on behalf o f the appellant in reply to the charge. After this incident, the appellant ordered K u yu to get into his car, telling him that he was to be taken to the D istrict Office, Livingstone. Kuyu entered the car willingly, which was driven to the Livingstone Motor W orks, filled with petrol and then back to the appellant’s house. K uyu remained in the oar, having been told not to leave it. The car was then driven by the appellant in the direction o f the Falls. K uyu asked the appellant where he was being taken, but received merely a signal to remain silent. The car crossed the bridge into Southern Rhodesia, and was halted tem porarily at the Police Barrier. K uyu did n ot leave the car [Vol. II and made no complaint to the Southern Rhodesia Police. The car proceeded to a point beyond Matetai (distance not stated) where all parties got oat. From the record it would appear that Mrs. Trolley was also a passenger. The appellant then adminis­ tered a thrashing to the native and drove back to Livingstone leaving him on the highway. On being questioned subsequently by the police, the appellant made admissions which correspond with the facts set out above. The offence o f kidnapping is defined in Penal Code section 223, as the conveyance o f a person without his consent beyond the limits o f the Territory; that is to say, out o f the protection o f the law. W ith the admission o f the fact o f conveyance, the only question remaining for decision by the Magistrate was that o f consent, but on this point he has quite unnecessarily involved himself in difficulty by the use o f the expressions such as “ active consent ” , “ passive consent ” and " lack o f dissent ” . However, he appears to have come to the conclusion that there was no consent, and upon this finding convicted the accused. In his application to the Magistrate to state a case, Counsel sub­ mitted that— (1) The absence o f consent being an integral part o f the charge, the burden o f proof is on the prosecution, and that it was insufficient to satisfy the Court that there was absence o f some particular form o f consent not specified in the charge. (2) The introduction by the Court o f the word “ active ” to qualify and reduce the ordinary meaning o f the word “ con­ sent ” contained in section 223 o f the Penal Code is contrary to the rules o f construction. (3) The fact that the complainant made no complaint at the first opportunity, i.e., at the Falls Police Post, that he then made no attempt to leave the car when he was under no compulsion to remain, and his statements that he went willingly, and that he had no cause o f complaint, negative that part o f the charge constituted b y the words “ without the consent o f that person ” , and that, therefore, the prosecution failed to establish the charge, and the conviction was wrong. (4) That the fact accepted by the Court that, while in Living­ stone, the complainant inquired as to the destination, is irrelevant to the issue, in view o f the terms o f section 40 o f the Em ploym ent o f Natives Ordinance. (5) That evidence o f the result intended to be caused by the accused, not being expressly declared to be an element o f the offence constituted, is immaterial according to the terms o f the second paragraph o f section 10 o f the Penal Code, and that the Court was wrong in finding that the consent o f the complainant was necessary to an act outside the express words o f the charge. (6) That the Court has no judicial knowledge o f the con­ stitution o f offences outside the Territory, and was therefore Vol II] wrong in finding that an “ assault ” took place in Southern Rhodesia, and that it constituted part o f the continuous action covering the offence with which the accused was charged. The seventh (and last) submission is n ot appended, as the question with which it deals was waived in the Court below: These submissions were subjoined to the statement o f the M agistrate’s case in fashion more in keeping with the transaction o f departmental correspondence than practice at law. The gravamen o f the first three submissions is that the Magistrate misdirected himself on the question o f consent. I agree that he has indeed allowed confusion to enter, for this is obvious from the manner in which he permitted the expression “ active consent ” and “ passive consent ” to creep into his judgment. These expressions are solecisms, and in my view should not be permitted to obscure the issue. I am satisfied from the latter part o f his judgm ent, and from a note which appears on the record, that despite this diversion the M agistrate did apply his mind—tardily though it may have been—to th e real question. This being so I hold that the first three submissions m ust fail. The fourth submission was not argued. As regards the fifth submission, the com plaint here is that the Magis­ trate was wrong in finding that consent was necessary to an act outside the express words of the charge. The thrashing was an im portant part of the whole transaction, and evidence regarding this was no doubt led, and I think properly admitted, to explain circum stances connected with the offence. It may be that here again the M agistrate has gone beyond useful discussion, but I am unable to hold that this has in any way vitiated the conclusion he arrived at. I am afraid I do not see much substance in the sixth submission. The act o f thrashing the boy under the circumstances adm itted b y the appellant would, had it taken place in this Territory, have been a penal offence; and in my view it is idle to suggest that the M agistrate, before using a term o f art to describe that act, should have had p roof that such an act was an “ assault ” under the law o f Southern Rhodesia. For the respondent it was argued that the question o f consent was to be resolved on a finding o f fact, and that there was sufficient material before the Magistrate to support the conviction. On the facts, Mr. Williams submitted that the servant K u yu had no knowledge o f what was happening. H e was first told that he was being taken to the District Officer. He never arrived there. Then he was ordered to remain in the car, and on inquiring where he was being taken when approaching the border, no reply was given. W ithout such know­ ledge no consent could be inferred from any action o f his construable as a willingness to remain in the car. Consent means an act o f reason accompanied w ith deliberation: the mind weighing as in a balance the good or evil on either side. Consent supposes three things: a physical power, a mental pow er and a free and [Vol. II serious use o f them. Hence it is that if consent be obtained by meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind. (Cf. Wharton, 13th Ed., p. 204.) Conveyance o f a person from one place to another is not criminal. The act, however, becomes criminal if he is conveyed without his consent, and it is that which gives the act its essential elemental o f criminality. From the definition above this consent, to be validly given, must be an intelligent consent, the result o f a deliberate and free act o f the mind fully cognisant o f the course o f proceedings. Now, under the circumstances appearing in this case can it be said that the native boy K uyu gave, either expressly or impliedly, his consent to be rem oved from the protection o f the law o f this country ? He was not informed o f the purpose o f the journey to Matetsi, nor the implication attending his transfer beyond the jurisdiction o f this Court. W ithout knowledge there can be no consent. There is sufficient evidence to justify the conviction, and the determi­ nation o f the Court below is hereby affirmed. I regret finding it necessary to remark on the manner in which this case has been stated and presented, as it indicates an unfortunate dis­ regard o f the rules o f practice in such procedure. This is a defect too frequently experienced in connection with records coming from many o f the subordinate courts, and I would exhort lay Magistrates to pay more regard to such matters in future. The requirements o f the law regarding the statement o f a case are set out clearly in Criminal Procedure Code, section 320, and as a guide to the correct practice to be followed and use o f forms, it is very necessary to refer to one o f the standard text books on the subject. N o order as to costs.