Philemoni s/o Byabochwezi v. R. Crim. App. 372-M-1971; 8/12/71; El Kindly J.

 

Philemoni s/o Byabochwezi v. R. Crim. App. 372-M-1971; 8/12/71; El Kindly J.

Appellant was convicted on three counts in respect of offences against the Fauna Conservation Ordinance, Cap. 302. The second count was that he had hunted and killed a warthog, without licence c/ss 12 and 53 of the Ordinance. The accused had been issued with a licence but had already killed the number of animals permitted and therefore when he killed the warthog it was not authorized. He pleaded guilty to the court, but in mitigation said that he only killed the animal because it was damaging his crops. As proof that he acted in good faith, he pointed out that it was he who had indicates on the licence that he had killed the additional animal and otherwise the police would not have been aware of the offence.

Held: “In my view, the entering of this warthog in the licence would tend to suggest that the appellant believed honestly and reasonably, though mistakenly, that he could kill the alleged warthog by the licence he had, and if that was so, then the appellant was putting a defence of mistake of fact (see section 11 of the Penal code, Cap. 16). On the face of it, the appellant appeared to have pleaded guilty to the charge, but what he said in mitigation, which was not taken into account even in passing sentence, raised a defence which the trial court should not have left unattended. It is well established that a plea of guilty can be withdrawn even after conviction (See Hassan s/o Mohamed v. R. 1968 H.C.D. No. 429). The appellant should have been given the opportunity, after the conviction had been entered, to explain whether, even in the light of his statement in mitigation, he still pleaded guilty to the charge. It was the duty of the court to explain the problem involved because if the appellant was merely saying that he was ignorant of the law, that would not be a defence (see section 8 of the Penal Code, Cap. 16), but if he meant that it was an honest mistake of fact ……. Or that he was putting defence of property as his defence (see section 18 of the Penal Code, Cap. 16) the trial court would not be satisfied that the appellant was unequivocally pleading 

guilty to the charge in spite of the appearance. For this reason, I cannot say that the plea of the appellant, on this count, was unequivocal so as to enable this court to uphold the conviction of the appellant on the second count as well.”