CRIMINAL APPEAL NO. 4 OF 2000
CHANCY OSMAN MTALIKA
There are in all three grounds available for consideration in this case. The first is that there was insufficient evidence before the lower court to warrant a conviction. The second ground is that the lower court misdirected itself on the evidence of alibi, and the last ground of appeal is to the effect that the lower court misdirected itself on the burden of proof.
A careful reading of the record of the lower court seems to bear the learned Magistrate out on the view he took that essentially there was only one issue to resolve in order to put this matter to rest. It emerges quite vividly, despite slight variations in account by the victims of the incident, that on 15th December, 1998 a car registered number MG 324P driven by PW IV John Honde and carrying, inter alia, PWI Portia Chiyombo, PWII Lyton Saini, and PWIII Tiwonge Msukwa was ambushed by four or five masked or otherwise disguised men. The attackers first tried to force the car to come to a halt by blocking its passage on the road just after a bend with a log. When the driver unexpectedly diverted the car to the right side of the road and continued to drive away, the attackers were complled to give chase and to fire at it.
In my view the evidence that a robbery took place and that it involved the use of firearms was quite overwhelming as the lower court’s record clearly demonstrates. Indeed the sole issue for resolution, as the learned Chief Resident Magistrate correctly put it, was whether or not Mtalika, the Appellant, was truthfully linked to it. The crucial witness on this point was no doubt indeed Tiwonge Msukwa who claimed she had identified the Appellant amongst the robbers as the lower Court well observed. It logically followed that if the Court found the evidence of this witness convincing the meaning necessarily was that, regardless of who the other members of the group were, the Appellant was participes criminis in the spirit of Section 21 of the Penal Code and accordingly fully guilty of the offence as a principal offender and thus deserving of a conviction. It also equally followed that if the Court entertained reasonable doubts about the witness identification of the Appellant in the group of robbers, whether by reason of the Appellant’s plea of alibi or otherwise, then the accused would be taken as not having been proven guilty, at which point he would rightly deserve to be acquitted.
I will say right away that having myself read the record of the Court below in considerable detail, the position the State took in the case struck me as being quite odd. I got the impression even as this stand unfolded that either the State did not read the lower Court’s record or only did so superficially. I thus feel bound in the circumstances not just to accept the State’s concessions in this appeal on face value as I decide the case. I will therefore, without aid of this stand,independently, as indeed I am duty-bound to do, evaluate the grounds and arguments advanced herein on behalf of the Appellant before finally allowing or dismissing this appeal.
In the argument of the appeal, learned Counsel for the Appellant placed great emphasis on the point that it is only Tiwonge Msukwa who does not work with the Appellant who claims to have identified the Appellant on the occasion of the robbery and not the Appellant’s three workmates who were in the same car with her at that time. It was also forcefully argued that Tiwonge Msukwa could not be more familiar with the Appellant’s looks than his own workmates for her to beat them on the Appellant’s identification on the material day. To fortify this argument great reliance was placed on the point that Tiwonge stayed at her parent’s place some 500 meters away from the Appellant’s house. The fact that she at times also stayed with PW1 her aunt in a house next door to the Appellant’s was very much down-played.
Further, while it was acknowledged that Tiwonge said she was only able to identify the Appellant because in the chase on the car at some point the hat he wore which partly covered his face fell off and that she thus secured the chance to identify him before he put it on again, it was querried on behalf of the Appellant why the other occupants of the car failed to turn and look behind, as PWIII did, to observe the man whose hat fell down before he could put it on again.
It was also argued on behalf of the Appellant that failure to precede
Tiwonge’s identification of the Appellant in Court with conduct of an identification
parade rendered her evidence on this aspect suspect. Both learned
Counsel in the matter were on this point united in the argument that case
authorities including Chapingasa vs Rep. (1978-80) 9 MLR 414 and Macholowe
and others vs Rep Criminal App. No. 28 of 1999 brand this type of dock
identification suspect and that they thus discourage it.
As I have earlier already made it plain I have read the record of the lower court including the judgement of the court in this matter quite thoroughly. On the issue which the lower court correctly isolated as the one on which the outcome of the case was pivoted, I find the Magistrate’s analysis of the material evidence that was before him quite detailed and impressive. I equally observe that in taking the precautions he is required by the law to take where evidence of identification is so vital in the decision of a case, he so closely and almost religiously followed the lucid guidelines Topping, AgJ laid down in the Chapingasa case after a thorough review of preceding English cases on the point from as far back as the case of R -vs - Chapman (1911) 7 Cr. APP. R. 53.
I should here also take the opportunity to point out that in my understanding of the law both learned Counsel in this case were quite mistaken in arguing as if the conduct of an identification parade is a mandatory preamble to every dock identification. The correct position is that an identification parade will be essential where the witness purporting to identify the person in the dock is diong so only from the experience of having seen him/her for the first and last time on the day of the incident under complaint. The facts in the Chapingasa case itself very clearly demostrate why such a parade is important in such situations. As happened in that case the complainant who had just arrived in Lilongwe from Mzimba was robbed by complete strangers. To test his recollection of his assailants before being called upon to testify on his ordeal the best test is to see whether he is able to select the correct people in a group paraded before him. Where, however, as in the case of Tiwonge and the Appellant, the witness in her life already personally knows the suspect, it becomes hard to comprehend how an identification parade can best test such person’s recollection of her assailant.
On the defense of alibi the premise on which the allegation is founded that the lower court shifted the burden of proof to the Appellant eludes me. I do not see it anywhere in the judgement that the lower court indicated that the Appellant had to prove his alibi. Definitely, however, in the situation presented by evidence in the case the lower court had one of two options to take after digesting the evidence . It could believe, as it ended up doing, that the robber whose hat fell off was the Appellant. It however also could doubt that identification. Now it would amount to stretching matters a bit too far to claim or allege that since the lower court believed that Tiwonge really saw the Appellant at the scene of the robbery then it means that the Appellant was given an undeserved burden to prove his alibi.
Equally bewildering to me was argument which was conceded by the State itself that the prosecution had failed to disprove the alibi raised by the Appellant. The record shows that the State managed to offer to the lower court evidence that convinced it that although all others were not known one man who was present and participating in the robbery and who suffered the misfortune of his hat falling off and being identified in the process was the Appellant. I wonder what better evidence the State needed to adduce beyond this to expose the alibi claimed as false.
Definitely in the absence of possibility of the Appellant being at more that one place at the same time the fact that the lower court was convinced by prosecution evidence that he was at the scene and took part in the crime necessarily meant that he could not have been at Zolozolo at that very moment. I fail to appreciate the foundation for the assertion that the alibi plea was not disproved in this case.
Turning to sentence which the Appellant did not argue against I equally see no reason for interfering with it. For an offence carried out in the brutal manner this one was carried out I myself would have been inclined to pass a higher sentence than the lower court did. In view of the age of the Appellant and the fact that this was his first offence I will not ask him to show cause why the sentence should not be enhanced. I thus confirm the 84 months IHL the lower court imposed with effect from the date of arrest. I further direct the court below that the K6,000.00 recovered from the house of Appellant on the night following the robbery, which it was holding pending the outcome of this appeal should be returned to Choma Livestock Center in Mzuzu.
Pronounced in open court this 8th day of December 2000 at Blantyre.