Peter Zakaria v. R., Crim. App. 91-A-69, 12/5/69. Platt J.

Peter Zakaria v. R., Crim. App. 91-A-69, 12/5/69. Platt J.

The appellant insulted and threatened a court broker with bloodshed if his car was attached. He was convicted of unlawfully obstructing a court officer c/s 119, Penal Code. The section had previously been repealed and replaced by s. 114A.

Held: (1) The English rule, as stated in Meek v. Powell (1952) K.B. 164, is that where a charge is laid under a repealed section, which has been re-enacted, the conviction is a nullity. However, it was held in R. v. Indo Parsad Jamutram Dave, Crim. Rev. 40-D-63, Tanganyika Law Report Supplement no. 1/1964, that the law here was wider and that the defect might be cured on appeal under ss. 346 and 319, Criminal Procedure Code, “provided that the offence was in every essential the same under the old and the new sections, and provided that no failure of justice will result or may result from the alteration”. The same has been done in cases where a wrong section of the Penal Code has inadvertently been quoted. “Thus where the particulars set out a proper illustration of the offence and the appellant ……. Could not have been misled at all by the wrong statement of the section applicable, the courts have cured the irregularity…..” (Cutting: Abdu Rasul G. Sabur v. R., (1958) E.A. 126). However a qualification was stated in Uganda v. Keneri Opidi (1965) E.A. 614, which cannot be disputed, that “if it is not clear what the charge ought to have been, then the curing section cannot be invoked”. “From the authorities quoted, then it seems that the criteria for departing from the English rule are that there will or may be no miscarriage of justice of any kind, and in particular it must be clear what the alternate charge ought to have been…….. (2)On the facts of the case at hand, it is clear that the new section, s. 114A, is broader than the old section, s. 119, and does not repeat in similar terms the language of the old section. Moreover it is unclear from the particulars which part of the new section the offence would fall under. Therefore, in the circumstances, the charge cannot be cured, and the conviction null.