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Head 10
Criminal Procedure Flashcards
| Term | Definition |
|---|---|
| where he criminal liability for natural persons is set out. | Section 14 of The Penal Code |
| Where a body corporate is charged with a criminal offence | a representative of that body corporate takes plea on behalf of the body corporate |
| R v. Smith and Kitchen | it was pointed out that even though a non-corporate body cannot be charged with a criminal offence, the individual member(s) of such a body or firm, can be charged with the criminal offence that was committed by that body. |
| jurisdiction | refers to the authority of a court to accept the lodging of a case before it and to determine the issues raised by the case |
| Miyanda v. The High Court | it was held that in Zambia, the jurisdiction of the different courts is set out in the legislation or Acts of parliament that establish those courts. |
| Section 3 of The Criminal Procedure Code | provides that offences in The Penal Code and other laws, can be inquired into in accordance with the Criminal Procedure Code except in cases where there is specific procedure set out in an Act that criminalises a particular misconduct. |
| Section 2(a) of The Penal Code | recognises the fact that there are offences in legislation outside the Code. |
| Section 15 of The Narcotic Drugs and Psychotropic Substances Act | Establishes the offence of drug trafficking |
| Section 3 of the Anti-Human Trafficking Act | Establishes the offence of Human Trafficking |
| The People v. Dauti Tiyesanje Phiri | it was held that a court cannot acquit or convict an accused person, charged with an offence which such court has no jurisdiction to try. |
| Section 5 of The Penal Code | Zambian courts have the jurisdiction to try an offence committed anywhere in the country. (subject to section 65 of the Penal Code) |
| Section 65 of The Criminal Procedure Code | that provides that every court has the jurisdiction to try offences committed within its local limits. This means that when an offence is committed within the local limits of the court, the courts have the jurisdiction to try the offender whether he is a |
| Patrick B. Mponda v. The People | On appeal, a conviction on the ground that trial took place in the wrong district, can only be set aside if the appellant shows that preparation of the defence |
| Section 6(1) of The Penal Code | provides that where a Zambian commits a crime outside the country, which is also crime in this country, the Zambian courts will have the jurisdiction to try such a case. |
| Ngati and Others v. The People | the appellants, who were Zambians, where tried in Zambia for a murder that they committed in Congo DRC. In accepting that the Zambian courts had the jurisdiction to try them for a murder committed in the Congo, the Supreme Court noted that they were Zamb |
| In the case of offences committed outside the country by foreigners, the Zambian courts will only have the jurisdiction to try the offenders if the offence was partly committed in Zambia | Section 6(2) of The Penal Code |
| The People v. Roxburgh | the accused person, a foreign national, was facing a charge of bigamy, the second marriage having been contracted in America. It was held that the Zambian courts had no jurisdiction to try him because the second marriage, which was bigamous, was entered i |
| Section 6(3) of The Penal Code provides that | where a Zambian or foreigner commits an offence outside the country, the Zambian courts will have no jurisdiction if such a person was tried convicted and punished in that foreign country. It is also apparent that even if he was acquitted, the rule agains |
| Section 100 of the Electronic Communications and Transactions Act | Under that Act, the courts have the jurisdiction to try an offender for offences in that Act, even if the offender is a foreigner who committed the offence while outside the country as long as the “victim” was in Zambia. There is a similar provision in S |
| Anti-Terrorism and Non-Proliferation Act Terrorism Definition | in the definition of terrorism, includes acts done in or outside the country. This suggests that a foreigner can be tried for an act of terrorism wholly done outside the country. |
| Section 19 of The Subordinate Courts Act | that in the exercise of its jurisdiction, the Subordinate Courts shall be subject to the provisions of The Criminal Procedure Code or other pieces of legislation that may lay out procedural issues. |
| Section 12 of The Subordinate Courts Act | provides that the where The Criminal Procedure Code is deficient on the practice and procedure, in that there is no provision on a particular procedural issue, the court will proceed in line with the county practice or courts of summary jurisdiction, in E |
| Section 11(2) of the Criminal Procedure Code | provides that cases of treason and murder shall not be tried by the Subordinate Court unless the High Court has given special authority for that purpose. |
| Section 11(1) of the Criminal Procedure Code | empowers the Chief Justice, by statutory instrument, to determine which cases will be tried by the High Court. |
| Section 7 of The Criminal Procedure Code | provides 9 years as the maximum sentence of imprisonment that a magistrate can impose. |
| Section 9 of The Criminal Procedure Code | It is a requirement that the High Court to confirm certain sentences imposed by Class1, Class 2 and Class 3 Magistrates, if they exceed a specified threshold. |
| The People v. Christopher Mumba | it was held that such confirmations are not limited to terms of imprisonment, they also extend to fines. |
| Chomba v. The People | it was pointed out that for the purposes of confirmation of sentences under Section 9 of The Criminal Procedure Code, the aggregate of consecutive sentences will be treated as if it was one sentence. |
| Section 217 of The Criminal Procedure Code | provides for the Subordinate Courts to commit cases where the mandatory minimum sentence is above the sentencing power of the Subordinate Court, to the High Court for sentencing after a trial and following a conviction. |
| The People v Mumbuna Kombelwa | it was held that any magistrate can try any case even where there is a mandatory minimum which is above the trial court’s maximum sentencing power. Where the mandatory minimum is above the courts sentencing power, the case must be committed to the High C |
| Section 138(1) of The Penal Code | the mandatory minimum sentence for the offence is 15 years |
| Section 69 of The Criminal Procedure Code | It is a general rule that a case shall be tried in the district where the offence was committed. |
| section 66 of the criminal procedure code | an accused person may appear in court in the district where he was apprehended |
| Section 70 of The Criminal Procedure Code | provides that were an offence is committed in one district and the consequences are felt in another district, such a person can be tried in either district. |
| Section 189 of The Penal Code | makes it an offence to foul the air by discharging into the atmosphere any substance that makes noxious to the health of people. |
| Sections 71 and 72 of The Criminal Procedure Code | provide that where an offence(s) is committed in more than one district or is connected with an offence committed in another district, trial may take place in any one of the districts. |
| Section 73 of The Criminal Procedure Code | provides that where an offence is committed near the boundary of two districts, it may be tried in any of the two districts. |
| Section 75 of The Criminal Procedure Code | provides that the High Court may determine where the trial will take place. |
| Section 2(b) of The Penal Code and Section 352 of The Criminal Procedure Code provides that | criminal proceedings cannot be nullified merely because the trial took place in the wrong district. There must be proof that the accused person suffered a substantial miscarriage of justice by reason of the trial taking place in the wrong district. |
| The Court Martial | an ad hoc court constituted by virtue of Section 86 of The Defence Act, to try persons who are subject to military law. |
| Ordinarily, military personnel appearing before the Court will be charged with | offences under the Defence Act |
| Section 73 of The Defence Act | provides that they can be charged with a civil offence in addition to offences under the Act. A civil offence is an offence set out in legislation other than The Defence Act. |
| Section 122 of the Defence Act | the fact that persons subject to military law can be tried by the Court Martial, does not stop such a person from being tried by a civil court for an offence committed under any law. |
| Section 341B of The Penal Code | specifically provided that offences under DIVISION VI A of the Penal Code (Vandalism to Public and Private Property) shall be tried by the High Court |
| Zambia National Holdings Limited and UNIP v. Attorney General | the implication of the term “unlimited original jurisdiction” was considered. It was held that unlike the Subordinate Courts with limits in penalties they can impose and geographical limits of where the magistrate can sit, such limitations are not presen |
| Article 180 of The Constitution | The office of the Director of Public Prosecutions (DPP) is created by |
| the DPP is appointed by | the President, subject to ratification, by the National Assembly |
| powers of the DPP | Institute and undertake criminal proceedings against a person, before any court, other than a Court-Martial; Take over and continue criminal proceedings instituted or undertaken by another person or authority; and Discontinue, at any stage before judgme |
| Milford Maambo and Two Others v. The People | the Constitutional Court considered the question whether the exercise of the prosecutorial function can be questioned under the amended Constitution. It was held that the powers cannot be questioned. |
| Alfred Mumba v The People | the Director of Public Prosecutions does not have the power to institute and undertake criminal prosecutions before the Court Martial |
| entry of a nolle prosequi is | The power to discontinue criminal proceedings under Section 81 of The Criminal Procedure Code or the withdrawal of charges under Section 88 of The Criminal Procedure Code. It can also be through the common law practice of offering no evidence. |
| When a nolle prosequi cannot be entered | In both the Constitution and under **Section 81 of The Criminal Procedure Code,** the power to discontinue a prosecution by the DPP cannot be invoked after the court has delivered its judgment. Neither can it be invoked in a case that is coming up on appe |
| Sub-section 1 of section 81 of The Criminal Procedure Code | entry of a nolle prosequi can be brought to the attention of a judge or magistrate viva voce or through filing it into court of a formal document, a notice of the entry of a nolle prosequi |
| Section 81(2) of The Criminal Procedure Code | the prosecutor in the High Court files the nolle prosequi with the Registrar, while in the Subordinate Court it is filed with the Clerk of Court. |
| According to Section 81 of The Criminal Procedure Code the entry of the nolle prosequi results in | the “discharge” of the accused person |
| R v. Train Viyuwi | it was held that the use of the _nolle prosequi_ is the only way in which a criminal matter can be withdrawn from the High Court. |
| Director of Public Prosecutions v. Mbayo Mutwala Augustino | it was pointed out that once the DPP has decided to discontinue criminal proceedings by way of _nolle prosequi_, the court cannot question and stop such a decision. |
| R v Khanyisi | it was pointed out that the term “discharge” in the Criminal Procedure Code, has a technical meaning, it cannot be used to mean “release”. |
| Section 88 of The Criminal Procedure Code | allows the prosecutor to withdraw a case at any stage before judgment. Where such withdrawal is not on the instruction of the DPP, the consent of the court is required. |
| R. v. Banda | it was held that the proper verdict when charge is withdrawn is a discharge. |
| Section 88 of the Criminal Procedure Code it is within the magistrate’s discretion to accept or reject the application to withdraw, where | the application is not on the instruction of the DPP. |
| Ngoma v. The People | it was held that an application by a prosecutor to withdraw a case must not be allowed by a magistrate without good and sufficient reason. Further, that the unchecked granting of withdrawals and adjournments adds to the expense of trials, the time they ta |
| R v. Frackson and Samson | it was pointed out that in some cases, the offer of no evidence, which results an acquittal, meets the ends of justice. The offer of no evidence is appropriate in cases where there is no likelihood of the prosecution being restarted. |
| Section 82 of the Criminal Procedure Code allows delegation to | Solicitor General and State Advocates, the power to enter a nolle prosequi under Section 81 of the Criminal Procedure Code and to make decisions associated with committal proceedings. |
Created by:
Eddard