GORDON v. R. (1972) HCD 36

Crim. App. 641-M-71; 2/11/71; Kisanga, Ag. J.

The trial magistrate summarily sentenced the appellant under Section 114(1)(b) of the Penal Code because the appellant had failed to turn up in court in answer to a summons to give evidence. No charge was framed but the record indicated that the court asked him to give reasons why he should not be punished under Section 114(2) of the Penal Code. The appellant claimed that he was in the toilet at the material time.

HELD:

(1) “In the case of Antony Mhikwa vs. R., (1968)H.C.D. n. 460, Seaton, J. held that it is to be presumed that an offence under section 114(1)(a) of the Penal Code requires mens rea. The offence created under section 114(1) (a)is that of showing disrespect to judicial proceedings or to a person before whom such proceedings are being conducted. In the present case the offence created under section 114(1) (b) is that of failing to appear to give evidence in answer to a court summons. Both offences are cognate to contempt of court and are much of the same character. Thus I think that the rule in Antony Mhikwa’s case should equally apply to require proof of mens rea or intentional disrespect where a person is charged with failing to appear to give evidence in answer to a court summons. And if that rule is applied to the present case, then the accused’s explanation, which was unrebutted, that he was in the toilet when he was called upon, would clearly negative any such mens rea or intentional disrespect.”