R v W.M. de Beer (Criminal Review Case 1 of 1936) [1936] ZMHCNR 6 (31 December 1936)

no Vol. I] R. v. W. M. de BEER. A Criminal R eview Case of 1936. Charge against Composition Order Debtor o f obtaining credit after date of Composition Order—Subordinate Courts Ordinance section 56 (14)__ plea of guilty— accused bound over to come up fo r sentence when c a lle d upon—bond executed—subsequent breach o f condition—further pro­ ceedings—procedure to be followed. In this case the High Court reviewed proceedings in the Court below and outlined the proper procedure to be follow ed in the circumstances. In 1953 was enacted the Probation o f Offenders Ordinance, which gives power to Courts to make Probation Orders. Sections 31 of the Penal Code and 287 o f the Criminal Procedure Code are still in force and can be invoked when a Court does not consider it appro­ priate to make a Probation Order. Francis, J .: This matter has been submitted for review b y the Court at the instance o f the Acting Resident Magistrate, K itw e. It is a case in which the accused was charged before the Court below, sitting on the 19th November, 1936, o f an offence against section 56 (14) of the Subordinate Courts Ordinance, 1933. The accused pleaded guilty, and without recording evidence, or any statement o f the facts o f the case (which should have been done) the Magistrate entered, “ Sentence: To be bound over in the sum of £25 (amended the next day on application of the accused to one surety in £50) to come up for sentence at any time when called upon within the next year as from 19-11-36. T o enter into bond forthwith section 287 (1) C. P. C.” This is an indication that the Magistrate proposed to give the benefit of the “ Probation of Offenders A ct ” , the operative section o f which is reflected both in the Penal Code section 31 and the Criminal Procedure Code section 287 (1). Incidentally these two sections seem to overlap. It will be observed that in the latter section an important provision is the avoidance of sentence; consequently the mere entry in the record, o f the word “ sentence ” is wrong. The expression should have been “ Order ” . There should then have followed the terms of the order in more specific language, and an appropriate entry might have been: “ It is ordered that the accused be discharged conditionally on his entering into a recognisance o f £25 with two sureties in the sum o f £25 each, subject to the following condition: That he be o f good behaviour and appear before the Court for sentence when called on at any time during the period o f (twelve months) next ensuing.” [Vol. I Two additions may bo made to orders in these cases: A. The first, a very usual one in limitation o f residence; this is contemplated under Criminal Procedure Code section 289; and B. The other, a formal and occasionally necessary requirement, V that unless and until the said------------ : shall enter into such recognisances with such sureties as aforesaid the said ------------ shall be detained in prison for the term o f (a nominal period) ” . With regard to this the magistrate should ascertain before passing an order whether the accused is likely to be able to give security immediately or within a reasonable time, cf. Penal Code section 31 (1). Such an order in complete form as above may be made both under section 31 (1) Penal Code and Criminal Procedure Code, section 287 (1). The form of the order could be drawn from any of those appearing in Paley’s Summary Convictions, 9th Ed., p. 1104 et seq. Such a form would be a “ variation ” o f the Recognisance Form Crim. 15, Fourth Schedule Criminal Procedure Code. The order o f the Magistrate did not include the elementary condition “ that in the meantime he keep the peace and be o f good behaviour ” , nor is there anything included in limitation o f residence. The form of recognisance used, though purporting to derive its authority from Criminal Procedure Code section 287 (1), is but an untidy adaptation o f Crim. Form 15a and, in the view o f this Court, faulty. However, the recognisance having been signed the accused was apparently discharged. On the 22nd o f January, 1937, the accused seems to have been brought before the Court “ to answer to the recognisance ” , but it is not stated in what respect the condition in the recognisance has not been observed. It is conjectured from the evidence taken on that occasion that he intended leaving Nkana and going to Mufulira. The accused admitted, " I realise I have no right to leave Nkana ” , but in the absence o f any condition in the recognisance in limitation of residence, there was nothing In any event he would not have been so to prevent him leaving Nkana. far away at Mufulira as not to have been able to attend at Nkana if so summoned. Apparently in view o f his intended departure, the Court then re­ opened the case, and, having on the first occasion found the accused guilty o f the charge, imposed a fine o f £25 or one month I. H. L. Now the whole o f this procedure on the 22nd January is wrong. It must be apparent that on the passing o f the order on the 19th November the Court was functus officio, unless the accused within the period prescribed failed to observe some condition o f his recognisance, and as there is no proof before the Court o f any such failure the sentence imposed on 22nd of January must be quashed and the fine (if paid) returned. Vol. I] The following order o f this Court will be, “ That the accused be discharged on probation from the conviction o f 19th November, 1936, conditionally on his entering again into a recognisance o f £25 in himself, with one surety in the sum o f £50, subject to the following con dition : 1. That he be o f good behaviour and appear before the court o f the Resident Magistrate, Kitwe, for sentence when called on at any time during the period commencing from the date o f such recognisance and terminating on the 18th Novem ber, 1937. 2 2 2. That he continue during such period to reside within the Kitwe or Mufulira districts.”