Selestian Magalama v. R., Crim. App. 286-M-1969, 3/7/69, Bramble J.

Selestian Magalama v. R., Crim. App. 286-M-1969, 3/7/69, Bramble J.

The appellant in this case was an Internal Revenue Officer who had a duty to keep the keys for the strong room according to regulations. He left the keys a Police Station and there was a theft of public funds – Shs. 1,290/-. For his negligence in not keeping the keys himself he was surcharged by the Treasury, and also charged in court under section 121 of the Penal Code which reads as follows:- “Every person employed in the public service who willfully neglects to perform any duty which he is bound either by common law or by statue or Ordinance to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary courage and activity might be expected to encounter is guilty of a misdemeanor.”

Held: (1) “The essence of the charge is ‘willful neglect’ to perform a statutory duty and not merely negligence in performing it. The appellant here was negligent in that in leaving the key at the Police Station he did not entrust it to a Police Officer. There was no willful neglect to perform a statutory duty and the correct punishment of negligence was surcharging the appellant which was done.” (2) “From the record it would appear that the appellant make an unequivocal plea of guilty but it is clear that although admitting the facts he did not know the difference between the surcharge and the criminal charge nor is there any indication that the learned magistrate explained it to him. The appellant was asked “have you now understood the charge” after reading the notice of the surcharge and he said – “I do understand the charge. My plea is as before. I plead guilty to the charge and I say that the facts are correct as outlined by the prosecution.” Since the facts as outlined by the prosecution did not disclose the offence charged it was the duty of the learned magistrate to enter a plea of “not guilty” and he should have been put on his guard by the appellant’s not understanding the charge. In spite of his positive answers the appellant’s plea was not unequivocal in that the charge was not explained to him by the court when he did not understand it.” Appeal allowed.