IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation case number 1468 of
2001
REPUBLIC
Versus
MORGEN LAMUSESI
In the Second
CORAM: D.F. MWAUNGULU (JUDGE)
Chimwaza, Deputy Chief State
Advocate, for the State
Defendant,
present, unrepresented
Kamanga,
the official court interpreter
Mwaungulu, J
JUDGEMENT
The
reviewing judge doubts the conviction in this matter. The
First,
there was, at the close of the prosecution case, no case to answer against the
defendant. In subordinate courts, under section 254 of the Criminal Procedure
and Evidence Code, the court, must at the close of the prosecution’s case
decide whether there is such a case requiring the defendant to enter into his
defence. This Court stresses this duty in R
v Raphael (1923-61) 1 ALR (Mal) 377; R
v Hermes (1923-61) 1 ALR (Mal) 985; and Tarmahomed
v R (No.2) (1964-66) 3 ALR (Mal) 457. If there is no case to answer, the
court must acquit the defendant: R v
Damson (1923-61) 1 ALR (Mal) 526; Harold
v R (1923-61) 1 ALR (Mal) 538; and Zinyose
v Republic (1966-68) ALR (Mal) 626. The statutory requirement replaces the
Common law that the defendant elects whether or not to submit that there is no
case to answer. Of course at this stage the prosecution need not raise a case
beyond reasonable doubt; it suffices if, on the evidence, in the absence of an
explanation from the defendant, a reasonable tribunal would convict: Republic v Chidzero [1975-77] MLR 94.
There is no prima facie case where the evidence fails to establish an element
of an offence or the evidence is so unreliable that a reasonable tribunal would
not convict on it: Director of Public
Prosecutions v Chimphonda [1973-74] 7 MLR 94. The evidence in the lower
court was such that at the close of the prosecution’s case a reasonable
tribunal would not convict.
The
prosecution proceeded on that certain prosecution witnesses saw the defendant
in the morning at some place where, it was alleged, these prosecution witnesses
found property stolen during the housebreaking. If at the close of the
prosecution case the prosecution’s evidence established all this, then the
court’s task was, as we see later, to consider the defendant’s explanation. The
prosecution’s evidence at the close of its case far from established that the
prosecution witnesses found the property where the defendant was earlier. Of
course, one witness, who saw the defendant in the morning, testified to that
effect. It is clear however that she was not among the search party that found
the stolen items in the bush. She could not therefore testify to that the
search party found the property where they earlier saw the defendant.
The lower
court proceeded on her assertion that others who searched the place found the
property where they saw the defendant earlier in the morning. Cardinal to the
circumstantial evidence the prosecution relied on was proof the search party
found the property where the defendant was earlier. The prosecution called none
of those who in the search party to tell the court exactly where they found the
property. The evidence of the witness the prosecution called is inadmissible on
this point. She was not among those who found the property. That statement was
inadmissible, as hearsay, if, as the lower court thought, the intent was to
show that the property was found where the witness earlier saw the defendant.
The hearsay is not saved by any of the exceptions to the hearsay rule. The
evidence was wrongly admitted.
The
question is whether the conviction is undermined by this wrongful admission of
evidence. In Gulumba v
Republic Misc.Cr.Appl. No. 51 of 2003, unreported, this Court said:
“Generally, a court reviewing a
tribunal of fact should reverse a finding of fact based on evidence that should
be excluded subject, of course, to section 5 (2) of the Criminal Procedure and
Evidence Code:
“The improper admission or
rejection of evidence shall not, of itself, be a ground for the reversal or
alteration of any decision in any case unless, in the opinion of the court
before which an objection is raised – (a) the accused would not have been
convicted if such evidence had not been given or if there was no other
sufficient evidence to justify the conviction, or (b) it would have varied the
decision if the rejected evidence had been received.”
The question is whether at the end of the prosecution case,
a reasonable tribunal would have convicted if this objectionable evidence was
excluded. In my judgment, the tribunal would not have convicted if this
evidence was excluded. Without it, all there is is that a prosecution witness
saw the defendant at a place we are not sure was the place where the property
was found. That doubt must be resolved in the defendant’s favour.
Secondly,
in my judgment, even accepting the defendant was seen at the place, there is no
doubt, reading the record as a whole, that many passed where the property was
allegedly found. In all, the evidence makes it probable the defendant stashed
the property stolen during the burglary. Proof on a preponderance of
probabilities is insufficient for the prosecution to discharge the otherwise
onerous duty cast on it by law to prove the defendant’s guilt beyond reasonable
doubt. In Samanyika v
Republic Cr.App. No. 33 of
2002, unreported, this Court said:
“Concerning circumstantial
evidence, the burden of proof operates at two levels important for proof of
guilt. First, the prosecution must establish beyond reasonable doubt the facts
for the court’s inference of guilt. Consequently, the prosecution fails to
discharge the burden always on it to prove guilt beyond reasonable doubt by not
proving beyond reasonable doubt facts it wants the court to infer guilt. On the
other hand, although established to requisite standard, proven facts may be
insufficient to establish guilt beyond reasonable doubt. The Supreme Court of
Appeal in Jailosi v Republic (1966-68)
4 ALR (Mal) 494 stated that each link in the chain of evidence must be
unassailable and the cumulative effect must be inconsistent with any rational
conclusion other than guilt. In Nyamizinga
v Republic (1971-72) 6 ALR (Mal) 258 this Court held that the prosecution
must establish beyond reasonable doubt that guilt is the only inference. In Director of Public Prosecutions v Kilbourne [1973]
AC 729 at 758, Lord Simon said circumstantial evidence ‘works by cumulatively,
in geometric progression, eliminating other possibilities. There must, in the
words of Pollock, CB., in Exall (1866) 4 F & F 922:
“… be a combination of
circumstances, no one of which would raise a reasonable conviction, or more
than a mere suspicion, taken together, may create a strong conclusion of guilt,
that is, with as much certainty as human affairs can require or admit.”
The circumstantial evidence the prosecution relies only
raises a possibility. It is insufficient to discharge the duty of the
prosecution to prove the defendants guilt beyond reasonable doubt.
Finally,
even accepting that the prosecution witnesses found the defendant where the
property stolen was stashed, the defendant’s explanation could reasonably true.
The defendant professed innocence all through. The lower court approached the
matter from that it could not believe the defendant. Even if the court
disbelieved the defendant, it was still for the prosecution to prove the case
against the defendant beyond reasonable doubt. The state could still fail to
discharge this duty even if the court rejects the defendant’s story. Where,
however, the defendant gives an explanation, the court must consider whether
the explanation is reasonably true with the result that if it is the state will
not have proved the case against the defendant beyond reasonable doubt. On this
aspect I have found what Weston, J., said in Gondwe v Republic (1971-72) 6 ALR (Mal) 33 very helpful:
“. . . the
appellant gave an explanation, for what it was worth, and let me say at once
that, like the resident magistrate, I do not think it was worth much.
Nevertheless, it is trite learning that it is for the prosecution to establish
its case beyond reasonable doubt and not for the accused person to prove his
innocence. This has been said so often as to be in danger of losing its
urgency. As in every case where the accused person gives an explanation, in
this case its application required that the court’s approach to the appellant’s
story should not have been what it evidently was: ‘Is the accused’s story true
or false?’, resulting, if the answer was ‘False’, in a
finding that the appellant must necessarily have had a fraudulent intent. The
proper question for the lcourt to have asked itself was – ‘Is the accused’s
story true or might it reasonably be true?’ – with the result that that if the
answer were that the appellant might
reasonably have been telling the truth, then the prosecution would not in that
case have discharged the burden of proof beyond reasonable doubt imposed upon
it by law”
The lower court would not have convicted the defendant if
it had approached the matter as suggested. I therefore quash the lower court’s
conviction and sentence.
Made in open Court this 25th
Day of September 2003
D F Mwaungulu
JUDGE