Runyowa v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1966 |
| Date | 1966 |
| Year | 1966 |
| Court | Privy Council |
Rhodesia - Crime - Socius criminis - Mens rea - Whether sufficient for criminal responsibility -
The
“Any person who … (a) by the use of petrol, benzene, benzine, paraffin … or other inflammable liquid sets or attempts to set on fire any person, building … shall be guilty of an offence and (c) shall be sentenced to death where such offence was committed against any person or in respect of (i) any building or structure used for residential purposes and not owned, occupied or leased by the person convicted of the offence ….
By section 60 of the Constitution of Rhodesia and Nyasaland:
“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment …. (3) Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the doing of anything by way of punishment or other treatment which might lawfully have been so done in Southern Rhodesia immediately before the appointed day.”
The appellant was charged with two others with attempting to set on fire a building or structure in contravention of section 33A (1) of the Law and Order (Maintenance) Act, 1960. The trial court held that the appellant's conduct in buying and handing a bottle of paraffin to the persons who actually threw that bottle into a house containing people, he knowing that the bottle would be so used, made him a socius criminis in the commission of the crime. The appellant was accordingly convicted and sentenced to death. The death penalty was a punishment known in Southern Rhodesia before the appointed day in the Constitution.
On appeal, in which the point was taken that section 37 of the Law and Order (Maintenance) Act, c. 39, was ultra vires the Constitution in that it contravened section 60 of the Constitution:—
Held, (1) that an accused's culpability depended upon his own mens rea and when he was charged as a socius in a crime the extent of his criminal responsibility must be judged by his own mens rea; that the court could conclude that the appellant's conduct made him a socius criminis in the commission of the crime; and that, accordingly, he was to be regarded as a partner in the crime and could be indicted and punished in the same manner as the perpetrator (post, p. 884B–D).
(2) That, unless clearly empowered or directed, the courts could not rule as to the necessity or propriety of particular legislation; and that section 60 of the Constitution, on its true construction, enabled the court to adjudicate as to whether some form or type or description of punishment, newly devised after the appointed day, or not previously recognised, was inhuman or degrading, but did not enable the court to declare an enactment imposing a punishment to be ultra vires on the ground that the court considered it to be inappropriate or excessive for the particular offence (post, p. 891D–E).
Per curiam. A point taken on appeal to the Privy Council, but not raised either before the trial court or appellate court, may be allowed when the precise point was raised in another case and considered by the appellate court (post, p. 887A–B).
APPEAL (No. 1 of 1965) in forma pauperis by special leave from a judgment of the Federal Supreme Court of the Federation of Rhodesia and Nyasaland (Clayden C.J., Quenet and Forbes F.JJ.) (February 17, 1964) dismissing the appellant's appeal from his conviction by the High Court of Southern Rhodesia (Hathorn A.C.J.) (December 20, 1963) whereby he was found guilty of setting fire to a house by the use of paraffin and was sentenced to death.
1965. December 6, 7, 8, 9, 13. Morris Finer Q.C. and Louis Blom-Cooper for the appellant.
Mervyn Heald for the Crown.
The following cases, in addition to those referred to in the judgment of the board, were cited in argument: Rex v. CooperF1; Rex v. McChleryF2; Rex v. BaillieF3; Rex v. KozaF4; Reg. v. BainbridgeF5; Rex v. MatsitwaneF6; Wood v. GeorgiaF7; Robinson v. CaliforniaF8; Rudolph v. AlabamaF9; O'Neil v. VermontF10; British Coal Corporation v. King.F11
The judgment of the board was delivered by LORD MORRIS OF BORTH-Y-GEST.
The appellant was charged together with two other Africans (Alexander Gendhamu Chirawu and Kassiano Muringwa) with contravening certain provisions of the Law and Order (Maintenance) Act, 1960. The trial took place at Salisbury Criminal Sessions before Hathorn A.C.J. and two Assessors (see ss. 223 and 225 of the Criminal Procedure and Evidence Act) on December 9, 10, 11, 12, 13, 16, 17, 18 and 20, 1963. The unanimous verdict of the court as stated in the judgment of Hathorn A.C.J. was that all three accused were guilty on the main charge. In the indictment which was presented by the Attorney-General that charge was expressed in the following words:
“In that upon or about September 2, 1963, and at or near Harare in the Province of Mashonaland South aforesaid, the accused did all and each or one or more of them wrongfully and unlawfully and without lawful excuse, by the use of petrol, benzene, benzine, paraffin, methylated spirits or some other inflammable liquid, set or attempt to set on fire a building or structure, that is to say, house number 4093, Semi Detached Lines, Harare, aforesaid; and thus the accused did all and each or one or more of them commit the crime of Contravening paragraph (a) as read with paragraph (c) of subsection (1) of section 33A of the Law and Order (Maintenance) Act, 1960.”
There was an alternative charge which does not call for present mention.
The appellant was sentenced to death, as was Chirawu. Muringwa, who was aged 16–17 years, was sentenced to imprisonment for seven years. All three appealed. So far as the appellant was concerned he appealed against his conviction and sentence. The appeals were heard in the Federal Supreme Court before Clayden C.J., Quenet and Forbes F.JJ. Judgment was given on February 17, 1964. Quenet F.J. delivered the first judgment and Clayden C.J. and Forbes F.J. agreed. In concluding his judgment Quenet F.J. said:
“There is also an appeal by the third appellant against the sentence imposed upon him. The first ground alleges that the sentence was excessive, and the second reads: ‘… the learned judge erred in convicting the appellant under that section of the Law and Order (Maintenance) Act that carries the mandatory death penalty.’ In Richard Mapolisa v. The Queen,F12 this court held that section 33A of the Law and Order (Maintenance) Act applied to a socius criminis and that he was subject to the same penalty as the principal offender. It follows, the trial court had no alternative but to impose the death penalty.
I would dismiss all the appeals. In the case of the third appellant, Simon Runyowa, the attention of the executive is directed to the fact that leave to appeal against the judgment of this court in Mapolisa's case has been granted by the Judicial Committee of the Privy Council. The third appellant is not himself in a position to finance an appeal to the Privy Council. This court would respectfully suggest that the appellant be informed that his sentence will not be considered until after Mapolisa's case has been decided by the Judicial Committee, or, if that course be not accepted, that he be told so, so that he can make efforts to apply for leave to appeal.”
After a petition which was considered by their Lordships' board on July 27, 1964, special leave was granted on August 10, 1964 (in forma pauperis), to the Privy Council.
Mapolisa's case,F13 referred to in the judgment of Quenet F.J., was heard in the Privy Council on November 4, 5, 9 and 10, 1964. Their Lordships' reasons for their advice that the appeal should be dismissed were given in a judgment delivered on December 10, 1964.
The Law and Order (Maintenance) Act was passed in 1960 (Act No. 53 of 1960). By section 33 (1) it was provided:
“Any person who, without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon or any offensive material shall be guilty of an offence and liable to imprisonment for a period not exceeding ten years.”
Among the things included in the definition of “offensive material” was any inflammable substance. By Act No. 12 of 1963 a period not exceeding 20 years was substituted for...
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