Lalai v. R. Crim. App. 19-A-71; 14/5/71; Kwikima Ag. J.

Lalai v. R. Crim. App. 19-A-71; 14/5/71; Kwikima Ag. J.

The appellant was charged with personating a police officer. In his trial there was no evidence of the charge of personating a police officer but another offence of criminal trespass was revealed. The trial court acquitted the appellant of the charge and convicted him of criminal trespass. He appealed.

Held: (1) “Presumably the learned magistrate who convicted the appellant purported to act under section 181 of the Criminal Procedure Code. If that was the case it must respectfully be pointed out that the section was grossly misapplied. For the facts of the offence of personating a police officer do not in any way disclose the ingredients of the offence of criminal trespass. Section 181 of he Criminal Procedure Code reads: “(1) when a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. The rationale of this rule is that the accused will be prejudiced if in the course of his trial an entirely new offence is revealed and he is convicted with it. He will not have had time to prepare his defence.” (2) “Although both personating a police officer and criminal trespass are misdemeanors, the ingredients of the former do not incorporate the ingredients of the latter. In other words, the latter offence is neither cognate nor kindred to the former.” (3) “Appellant was improperly convicted.” (4) Appeal allowed.