(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDEL RAHMAN BAKHEIT GAIDOOM

AC-CP-474-1969

Principles

  Criminal Procedure—Plea of guilty to a charge under Penal Code, s. 259—Court should not convict upon such plea, because the section involves legal implications which need to be considered by the court.

The court should not convict upon a plea of guilty to a charge under Penal Code, s. 259, because such charge cannot be easily understood by the accused as it involves legal implications, i.e. it may be shown that the accused is entitled to one of the exceptions laid down under Penal Code, s. 249. Therefore the court should proceed to examine such legal implications before convicting the accused upon his plea of guilty.

Judgment

Salah Eddin Shibeika J. October 28, 1969: —Accused in this case was charged with attempted murder under the Sudan Penal Code, S. 259. He was convicted by a Major Court, held at Um Rawaba, under the said section.

The court based its findings solely on a plea of guilty pleaded by accused.

The court did not examine accused or hear any evidence.

Accused made a Judicial Confession (see page 6 of the Case Diary) before the commencement of the Magisterial Inquiry. This confession was not examined by the Major Court presided over by Sayed Mohamed Ali El Mardi, though it shows the reasons for the act committed by the accused.

A charge under the Sudan Penal Code, s. 259, cannot be easily comprehended by accused because it involves legal implications. The circum stances of the case may show that accused is entitled to one of the exceptions laid down under the Sudan Penal Code, s. 249. Indeed the court should examine this question and should not be satisfied with the mere fact that accused failed to raise one of the said exceptions. In the present case and having examined accused’s confession the court may  reach a finding of guilty of attempted culpable homicide not amounting to murder (Sudan Penal Code, s. 260)

The President of the court hurriedly entered a finding of guilty under the Sudan Penal Code, S. 259, without referring to the relevant legal pro visions or circulars. In this connection the Criminal Court Circular No. ii is quite instructive.

This circular directs that “it is a dangerous and undesirable practice to enter a plea of guilty if there is the slightest fear that the accused does not understand fully the implications of the plea."

On accepting and recording a plea of guilty it will often be necessary, especially where the charge is at all serious or complicated, to examine the accused and the record of any proceedings taken before the trial and even to call witnesses whose evidence appears in such proceedings (see Note to Code of Criminal Proceedure, s. 150). The court has power to do so under the Code of Criminal Procedure, ss. 218 and 219.

To sum up, the court has the discretion to convict the accused on his plea of guilty but this discretion has to be exercised judiciously.

A plea of guilty under a certain charge does not necessarily entail a finding of guilty under the same charge.

For the above reasons I refuse confirmation of the finding of guilty under the Sudan Penal Code, s. 259 and the case is to be sent back for retrial for reconsideration of the finding. The court should examine the accused and hear the injured person. The sentence was, in my judgment, rather lenient.