Fatyela v The People (ZR 135 (HC)) [1966] ZMHC 17 (30 December 1966)

FATYELA v THE PEOPLE (1966) ZR 135 (HC) HIGH COURT RAMSAY J 30th DECEMBER 1966 Flynote and Headnote [1] Criminal law - Burglary - Duty of prosecu�on to prove that dwelling house entered at night. The prosecu�on's failure to prove that a breaking occurred between 7 o'clock in the evening and 6 o'clock in the morning - the period which s. 5 of the Penal Code defines as 'night' - renders invalid a convic�on of burglary. [2] Evidence - Documents - Record of another court - Procedure for taking judicial no�ce of. It is improper for a magistrate to look at the record of another court in order to determine what was said during the hearing of a case; the correct procedure is to have the clerk of the other court produce the record and to have a witness present at the other trial iden�fy the accused and tes�fy as to what occurred. [3] Criminal procedure - Judicial no�ce - Record of another court. See [2] above. Cases cited: (1) R v Chona 1962 R & N 344. (2) Craven v Smith, 1869, LR 4 Exch. 146. Statute construed: Penal Code (1965, Cap. 6), s. 5. The appellant in person. Chandrin, State Advocate for the respondent Judgment Ramsay J: The appellant, Robert Fatyela, appeared before a subordinate court along with two others jointly charged with burglary and the�. They all pleaded not guilty, but the two other accused escaped from the remand prison, and the appellant alone stood trial. He was convicted of burglary, but not of the�, and he was sentenced to twelve months' imprisonment with hard labour. He is appealing against both convic�on and sentence. The dwelling house men�oned in the charge belonged to a Mr Shimmin, and on the date in ques�on it was uninhabited and looked a�er by servants. One of these, a Mr Daka, tes�fied that he closed the house at about 6 p.m. on the 24th June and when he returned at 7 a.m. the next day he found the door lock was broken and that a variety of ar�cles as detailed in the charge were missing. [1] 'Night' is defined in s. 15 of the Penal Code as being the interval between 7 o'clock in the evening and 6 o'clock in the morning. The prosecu�on has not excluded the possibility that the breaking occurred between 6 p.m. and 7 p.m. on the 24th or between 6 a.m. and 7 a.m. on the 25th. It was therefore not proved that the house was burglared, but merely that it was broken into. 1966 ZR p136 RAMSAY J The evidence implica�ng the appellant consisted of an alleged offence and an allega�on that he was in possession of four chairs, a canvas chair, and a bed, a matress, a pillow and a radio, all of which were iden�fied as having been stolen from Mr Simmin's house. With regard to the confession Constable Chilongo gave evidence that he arrested the appellant at Mumbwa Police Sta�on, that he warned and cau�oned him and that he made a reply. The appellant objected to the admissibility of the reply on the ground that it was not voluntary, and the magistrate held a trial within a trial on this issue. The appellant gave evidence and said that his reply was false and that he had merely agreed with what the police said because Constable Chilongo had threatened to beat him with a s�ck. He said further that he had previously been beaten by constables at Mumbwa when ques�oned about another case, that the magistrate from Broken Hill had found him not guilty, and that he had complained to the magistrate and shown him the marks. He said also that the court could see the record of that case. [2] The hearing was accordingly adjourned, and when it was resumed, the magistrate announced that he had the record and that appellant had denied the formal charge. The appellant then claimed that maybe the magistrate from Broken Hill had not writen it down when he complained about the bea�ng. The trial magistrate then adjourned the case for a scru�ny of the record, and for his ruling on the admissibility of the statement. When the hearing was resumed the magistrate ruled that the statement was admissible and his main reason for doing so was that there was no reference in the Broken Hill case to any mishandling of the appellant and it had there been decided that there was no case to answer but that this was not because of a false admission, or because the appellant had been beaten. It seems to me that the learned magistrate adopted the wrong procedure when he obtained possession of and looked at the record of another court. In R v Chona [1], at 350, Conroy, CJ stated that a court had power to look at its records and take judicial no�ce of their contents even though not formally brought before it, and he quoted as an authority Craven v Smith [2]. A perusal of this case however, shows that the reference is to a court's own records, and the reason given by Kelly, CB, was that when gran�ng rules for new trials and other similar applica�ons it would be impossible to understand the nature of the case without a knowledge of the contents of the record. This is quite a different mater from looking at the record of another court in order to ascertain what was said during the hearing of another case. In my opinion, such an ac�on is quite improper, and if the magistrate had considered it was essen�al to a just decision that he should know what transpired in the earlier case, he should have arranged for the record to be produced by the clerk of the other court and also for a witness who was present at the trial to iden�fy the accused and to tes�fy as to what had occurred. This is the procedure followed in a trial for perjury; evidence is given in open court as to what was said in the other court, and the accused 1966 ZR p137 RAMSAY J person has an opportunity to cross - examine the witnesses as to their evidence. In my judgment the record was not admissible as evidence. It was because of the contents of the record that the magistrate admited the confession. The confession therefore must be disregarded when considering the appeal. As I have said, the other evidence was that the appellant was said to be in possession of some of the ar�cles stolen from the house. The evidence as to this was that of a Mr Chigalilo who said that the appellant had rented part of his house from him and had brought the ar�cles there; but as he failed to pay the rent he (Mr Chigalilo) broke the lock and removed the ar�cles. The magistrate believed this evidence, but it is impossible to be certain that he would have done so if the confession had not been admited. In the circumstances, it is unsafe to let the convic�on stand. I allow the appeal and acquit the appellant. Appeal allowed