THE STATE v MLAUZI 1980 ZLR 148 (G)
THE STATE v MLAUZI 1980 ZLR 148 (G)
1980
ZLR p148
Citation 1980 ZLR 148 (G)
Case No Details not supplied
Court General Division, Bulawayo
Judge Newham J
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Heard |
13th June 1980 |
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Judgment |
13th June 1980 |
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Counsel |
Details
not supplied |
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Case Type |
Criminal
Review |
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Annotations
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No case annotations to date |
Flynote
Criminal Procedure and Evidence Act
[Chapter 59] — section 48 (1) — escape from custody after arrest but
before detention in prison need for custody to be effective.
Headnote
The accused had been arrested and
taken to a police station. He was told to wait in the E charge
office but no one was given the duty of ensuring that he did not leave. After a
time he was found to be no longer there. He was convicted of escaping from
lawful custody in contravention of section 48 (1) of the Criminal Procedure and
Evidence Act [Chapter 59]. On review. F
Held, setting aside the conviction,
that lawful custody for the purposes of the section must comprise de facto and
effective control, and the accused was not under effective control at the time
he left the police station.
Cases cited
R v Connias, GS1011966
(unreported)? G R v Dube, 1969 (2) RLR 117 (GD).
Judgment
Newham J: The accused was convicted
firstly of contravening section 5 (1) of the Firearms Act [Chapter 308] for
having in his possession ammunition (that is, a hand grenade) without holding a
current firearm certificate in respect thereof. The accused was sentenced to a
fine Of H $100 or, in default of payment, three months’ imprisonment
with labour, and in addition three months’ imprisonment with labour, the whole
of which was conditionally suspended for three years. Secondly the accused was
convicted of contravening section 48 (1) of the Criminal Procedure
1980
ZLR p149
Newham J
and Evidence Act [Chapter 59], it being alleged that having
been arrested and being in lawful custody, but not yet having been lodged in
any prison, A he wrongfully and unlawfully escaped from such
custody. He was sentenced to a fine of $20 or, in default of payment, two
weeks’ imprisonment with labour.
The regional magistrate to whom the case was sent for
scrutiny B considered that the accused should not have been
convicted on the second count. He referred the matter back to the trial
magistrate, who agreed. The regional magistrate has sent the papers to me with
the request that the conviction and sentence on the second count be set aside. C
The facts are that the accused, having been arrested by two
police details in connection with his possession of the hand grenade, was
escorted by them to the charge office at the Mzilikazi police station, and
handed over to the section officer in charge. Because of pressure of work at
the charge office the accused was told to sit down and wait. No one D was
specifically charged with the duty of ensuring that the accused did not leave.
It is common cause both that the accused is a member of the armed forces and
that while he was at the charge office the military police were summoned. It
is not in issue that a member or members of
that unit arrived, interviewed the accused and then departed. Later police
details E at the charge office found that the accused was no longer
in the office.
In the outline of his defence and in
his evidence the accused said that the military policemen asked him for certain
particulars, including his residential address. After that he had remained at
the charge office until F a policeman had told him that the military
police were handling the matter and that he could leave. Thereupon the accused
returned to his house. Though the accused could not say specifically which
policeman at the charge office gave him permission to leave, the State led no
adequate evidence to rebut the accused’s defence. Once the accused had raised
this G defence the onus was on the State to prove beyond reasonable
doubt that the accused had not been permitted to leave. This it did not do.
Quite apart from that aspect, however, it is evident on the facts that the
State failed to establish an essential element of the offence, which is that
the accused was in lawful custody at the time he escaped. There is authority, H
including R v Connias, GD (Sby.) 101/66 and R v Dube, 1969 (2) RLR 117
(G.D.), that lawful custody must comprise de facto and effective control. In
the present case such control, if any, as did exist at the time that the
accused took his leave did not amount to effective control and accordingly the
accused was not in lawful custody.
1980
ZLR p150
Newham J
I referred the matter to the AttorneyGeneral and, for the
reasons which I have mentioned, he does not support the conviction on the
second count.
The conviction and sentence on the first count, that of contravening A
section 5 (1) of the Firearms Act [Chapter 308], are confirmed. The
conviction and sentence on the second count, that of contravening section 48
(1) of the Criminal Procedure and Evidence Act [Chapter 59], are set aside. My
brother Gubbay agrees. B
