CONFIRMATION CASE NO. 1200 OF 1995
This case was set down to consider the conviction. The defendant, Dennis Mlauzi, was the only one convicted among three defendants that appeared before the First Grade Magistrate at Mzuzu. The three were charged with the offence of theft contrary to section 278 of the Penal Code. The defendant was sentenced to three months imprisonment with hard labour. At the time of hearing the matter, the defendant had already served the sentence that the First Grade Magistrate imposed on him.
A meeting was called early that morning at which Brian denied that the bag of salt, which had at the time of the meeting been searched, was found at his house. The defendants were taken to the police.
Before the Court below the case unravelled a lot of holes, which cast quite some doubt, as the Reviewing Judge thought, on the safety of the conviction. Brian Bandaís evidence on oaths was that on the 14th of February 1995 he went to work in his garden early in the morning. When he came back to the house and ready to go to work, his brother, Isaac Banda, and wife told him that the defendant had that morning brought a bag of salt for them to keep and they refused. Isaac Banda confirmed this story on oaths. Mr. Mlauziís story was that when he saw Brian take the bag of salt, he reported the matter to his boss.
From these facts, there are two renditions of evidence. The first one, which appealed to the trial Court, is that the defendant stole the bag of salt and the boots. The trial Court reasoned that the defendant was liable because he had been found with property stolen only hours before. There are a few problems with this premise.
First, there was no evidence that the bag of salt had been stolen a few hours before. There is nothing to suggest that bag of salt was in the store before the theft. There is no evidence when the boots missed. Just as there is no evidence when the boots were last seen in the store. They could have missed earlier and their loss only discovered by this episode. The trial Court must have assumed that the boots and salt must have been stolen that night. There is no basis for such a conclusion. If, as it appears the trial Court found, Brianís refusal is accepted all you are left with is the defendant who has a bag of salt from the company that missed on a day that is not known and the matter has come to light because the defendant has reported it.
The evidence on which this premise is arrived at, however, is the evidence of co-accused persons and required a warning as to corroboration. The First Grade Magistrate warned himself of the danger only when rejecting the evidence of the defendant against Brian and Isaac. He should have used the same rule when evaluating the evidence of Brian and Isaac which implicated the defendant. The requirement of corroboration does not apply only in one direction. It applies to each of the co-accused in relation to others.
The defendant told the Court that the bag of salt was collected from Brianís house. Brian and Isaac agreed that the bag did reach the house. They say, however, that the defendant brought it to the office. The trial Court did not adequately resolve this issue. There are two reasons on which the suspicion on the conviction is founded.
First, the Trial Court did not warn itself of the danger of convicting the defendant on uncorroborated evidence of the other co-accused. On this point the law is now settled. A conviction will not necessarily be quashed because of lack of such warning. Absence of a warning is fatal unless there is no failure of justice. One has to go a little further and decide whether the conviction is sustainable on other grounds(Nkata v Republic (1966-68)4 ALR (M) 52). In this case there is a further point which makes the conviction suspect.
A material witness was not called for the prosecution. The matter
whether it is the defendant or Brian who brought the bag of salt to Brianís
house would probably have been better resolved if the prosecution had called
Brianís wife. He was a material and available witness. No explanation
is given for his absence. This is surprising when it was known all
along. Moreover, Isaac had already been charged with the offence.
In Nankondwa v Republic (1966-68) 4 ALR (M) 388,392, Cram, J.A., said:
The conviction is unsatisfactory. I set it aside with the sentence.
Made in open Court this 1st day of February 1996 at Blantyre.