'Defiler' Escapes Jail On Technicality - The Zambian Observer
‘Defiler’ Escapes Jail On Technicality
By Dickson Jere
A man was accused of defiling a young girl. After investigations, he was arrested by police and charged with defilement. He was later prosecuted in the Magistrate Court in Kabwe where he was found guilty. However, since the offence attracted high sentence beyond the power of the Magistrate, he was referred to the High Court for sentencing as per criminal procedure. The High Court at Kabwe sentenced him to 40 years imprisonment!
Unhappy with the outcome, he appealed to the Court of Appeal against his conviction. His lawyer, in his appeal, raised a fundamental legal argument. He said the charge sheet did not mention the age of the girl and therefore the offence was not established.
On the other hand, the prosecution team argued that the non mention of the age of the girl was an omission that was not fatal and that the man understood the offence he was facing. And that he even defended himself.
A panel of three Court of Appeal Judges handled the appeal and agreed with the convict that the non mention of the age of the girl was crucial and rendered the all charges invalid.
“In this case, although the charge did allege that the appellant had unlawful carnal knowledge, it did not allege that the girl the appellant knew, was a child or below age of 16 years,” the Judges observed.
“The charge was bad for not disclosing the age of the victim, a material ingredient of a charge of defilement. In fact, it disclosed no offense,” the Court added.
The Judges said the charges could not be amended on appeal to correct any errors after the convict had been tried and convicted on non disclosed offense.
“In the circumstances, we find that the conviction is not satisfactory. We allow the appeal, set aside the conviction and the quash the sentence,” the Judges ruled and set free the man.
Case citation – Kashimbi v The People (Appeal No 210/2020.
Lecture Notes;
1. This is the correct position taken by the Court of Appeal. The charge sheet must mention the age of the girl as a material fact of the offence. The offence must be very clear because if the girl was not below 16 years, then there was no offence of defilement.
2. This case underscores the importance of paying attention to detail when drafting legal documents. Any omissions of vital information can led to acquittal of the accused or indeed losing the case.
