IN THE MALAWI SUPREME COURT OF APPEAL
MSCA CRIMINAL APPEAL NO. 7 OF 1998
(Being Criminal Case No. 2 of 1998)
SUDI SULAIMANA..................................................1ST APPELLANT
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BENARD CHISALA CHIRWA..............................2ND APPELLANT
SAMUEL EDWARD NTHENDA..........................3RD APPELLANT
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BEFORE:THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE UNYOLO, JA
THE HONOURABLE MR JUSTICE, MTEGHA, JA
Kaliwo, Counsel for the 1st Appellant
Zulu, Principal State Advocate, for the Respondent
2nd Appellant, unrepresented
3rd Appellant, unrepresented
Ngaiyaye (Mrs), Official Interpreter
Marsen, Official Recorder
J U D G M E N T
This is an appeal against conviction and sentence.
The pertinent facts are these. The three appellants and two others, who have not appealed, were jointly charged in the High Court with armed robbery, contrary to section 301 of the Penal Code. It was alleged that on 27th November 1997, the five accused persons and others unknown, being armed with dangerous weapons, namely, rifles, robbed the National Bank of Malawi at Thyolo Boma of the sum of K805,432.87.
The trial was before a Jury. A total of thirteen witnesses testified for the State. The appellants and the other two accused persons, on their part, did not testify. They elected to exercise their constitutional right in terms of section 42(2)(f)(iii) of the Constitution not to testify. They did not call any witnesses either.
Having considered the evidence alongside what was said by Counsel on both sides in their addresses and what was said by the learned trial Judge in his summing-up, the Jury returned a verdict of guilty in respect of all the accused persons, including the three appellants. The learned Judge thereupon proceeded to convict the accused persons as charged and sentenced each one of them to 10 years imprisonment with hard labour. As we have already indicated, the appellants appeal to this Court against both conviction and sentence.
There was overwhelming evidence that just before 2.00 pm on 27th November 1997, an armed gang stormed into the National Bank of Malawi at Thyolo Boma and stole the sum of K805,432.87. The appellants’ case at the trial was that they did not take part in the commission of the offence. This is also their position in this appeal. They argue, in the main, that the verdict returned by the Jury cannot be supported having regard to the proffered evidence.
We pause here and take a moment to say something about the law. Section 12(1) of the Supreme Court of Appeal Act directs this Court to allow a criminal appeal from the High Court and set aside a judgment which, among other things, cannot be supported, having regard to the evidence. This Court had an occasion to interpret the section in the case of Kafwambila v Republic (1968-70), ALR (M) 320. It was held in that case that while section 12(1) directs as stated above, it is not sufficient for an appellant to show that the case against him was a weak one, nor is it sufficient that the Court is placed in doubt as to the correctness of the verdict returned by the jury. The
court must be satisfied that the verdict was obviously and palpably wrong.
We dealt with the 1st appellant’s appeal summarily in open Court. We were satisfied that the verdict of the Jury in relation to this appellant was unsafe and could not be sustained, regard being had to the evidence. The only evidence which the State relied upon was given by the police officer who investigated this case. The officer said that the 1st appellant was arrested and charged with the offence herein simply because of what he had gathered in the course of his investigations, namely, that the 1st appellant’s car was used by some of the co-accused to go to the bank in Thyolo to survey the place, several days before the robbery. It was, therefore, believed that this being the case, the 1st appellant must have been connected with the robbery. With respect, while it is conceivable that the bank’s premises were surveyed in preparation for the robbery, there was, however, no evidence, apart from the police officer’s bare statement, to substantiate this allegation. Indeed, there was no witness who came forward to say that he saw the 1st appellant’s car in Thyolo, either before or on the day of the robbery. At best, the evidence was mere speculation. Quite rightly, Mr Zulu, Deputy Chief State Advocate, advised the Court that the State was unable to support the verdict of the Jury in relation to this appellant. We concurred in this view, and accordingly quashed the conviction of the 1st appellant and set aside the sentence that was handed down.
The Court then proceeded to hear arguments from the 2nd and 3rd appellants. The gist of the prosecution’s case against these two appellants was that they are the two men who drove the 1st appellant’s car to Thyolo to conduct the alleged survey of the bank. Further, as regards the 3rd appellant, a witness identified him during the trial as being one of the persons who actually carried out the raid of the bank. The appellants argued that the allegation that they went to Thyolo to survey the bank was not supported by any cogent or reliable evidence. They denied having gone to Thyolo for the alleged survey, or at all. The 3rd appellant also challenged the evidence relating to his identification during the trial. The 3rd appellant contended that the witness should not have been believed for two reasons - first, on the ground that the police did not conduct an identification parade in this matter which he said would have rendered his identification credible; secondly, on the ground that in the statements which the witness made at the police station, not too long after the robbery, the witness did not mention that he was able to identify any of the robbers. Finally, the appellants contended that the Jurors in this case were illiterate and that this case was too complicated for them to be able to follow the proceedings and come up with a correct verdict.
We will take the 2nd appellant’s case first. Just to recapitulate, we have said that while it may be true that a survey of the bank was carried out before the day of the robbery, there was, however, no actual evidence to substantiate the allegation. Further, and most importantly, there was also no evidence that the 2nd appellant was seen at Thyolo Boma, either at the time of the robbery or at any other time or day before that. The State sought to connect the 2nd appellant to this case on the ground that since the 3rd appellant was identified as one of the persons who took part in the actual robbery on the material day, he must be connected with the commission of the crime, because the 2nd appellant and the 3rd appellant were very close friends, who must always have gone out together. With respect, we are unable to accept this proposition. It is too broad and general to be true. Indeed, this is a criminal case and, over and above that, the allegation that was made against the 2nd appellant in this case was quite serious. In our view, such an allegation cannot be substantiated or proved simply by a sweeping statement or generalisation. As we have indicated, there was no other evidence in respect of the 2nd appellant. In the circumstances, the verdict of the Jury in respect of this appellant was obviously and palpably wrong, as it was not supported by the evidence that was adduced. Accordingly, we allow the 2nd appellant’s appeal. We quash his conviction and set aside the sentence that was handed down.
We now turn to the 3rd appellant. As we have shown, the case of this appellant has a further dimension, compared to that of the 2nd appellant. We have indicated that one of the prosecution witnesses identified the 3rd appellant as having been among the gang that robbed the bank on the material day.
We have scrutinised the evidence of the witness and it is significant that despite the rigorous cross-examination that was mounted, the witness was adamant and remained unshaken in his identification of the 3rd appellant as being one of the gang. The witness gave reasons how he was able to identify the 3rd appellant and also stated the role which the 3rd appellant played in the process of the robbery. It is also significant that in his summing-up, the learned trial Judge did warn the Jury of the need for caution before finding the appellant guilty based on the evidence of identification. All in all, there was substantial evidence against the 3rd appellant which, if accepted by the Jury, would support a finding of guilty. The Jury accepted the evidence. It cannot, therefore, be said that the verdict returned by the Jury was obviously and palpably wrong. This being the case, there would be no basis upon which the Court would interfere with the Jury’s verdict.
We have considered the 3rd appellant’s contention that the Jurors were illiterate and that on that score, this case was too complicated for them. With respect, these allegations are not borne out by the answers the Jurors gave when they were being empanelled. As a matter of fact, a good number of them said that they had been to secondary school. It is also to be noted that neither the 3rd appellant nor his Counsel objected to any of the Jurors at any time. Further, in our view, this was a straightforward case where the real issue was a factual one, namely, whether or not it was the accused persons brought before the Court who committed the offence in this matter.
Lastly, we wish to comment on a couple of procedural irregularities that are apparent in the record of proceedings. First, it is noted that on several occasions defence counsel interrupted the reading of some of the caution statements that were tendered by the police officer, on the ground that counsel wanted to raise objections to some part or parts of the caution statements. The Jury were then required to leave the Court and thereafter defence counsel pointed out the objectionable part or parts, giving his reasons, for example, that the part or parts in question contained hearsay statements or statements expressing an opinion or stating what one accused person said against another. Defence counsel then urged that the particular part or parts be deleted from the caution statement and excluded during the reading. Where the Court agreed with counsel, the parts were deleted. The Jury were then called back and the caution statement was read, leaving out the deleted parts.
With respect, the procedure adopted was irregular. In terms of section 176 of the Criminal Procedure and Evidence Code, a caution statement is admissible in evidence in its entirety. Counsel for the accused may of course cross-examine the recording officer thereon and may also comment on it in his address to the jury. As regards the weight to be placed on a caution statement, that is a matter for the
Jury, upon a proper direction by the trial judge in the course of the summing-up.
The other irregularity relates to the effect of an election by an accused not to testify in his defence. As we have indicated, the accused in the present case elected not to testify. The lower Court took the view that by so doing, not to give evidence at the trial, the accused persons lost their right to call witnesses, if they wanted to do so. This raises the question whether this was the correct position at law.
The matter is covered by statutory provisions. The starting point is section 313 of the Criminal Procedure and Evidence Code. The section provides as follows:
“When the case for the prosecution is closed and upon hearing any evidence which the High Court may decide to call at that stage of the trial under section 201 the High Court shall forthwith call on the accused to enter upon his defence.”
It is clear from the foregoing provision that in a criminal trial in the High Court it is mandatory for the accused to enter upon his defence immediately the prosecution closes its case. It is a notorious fact that under the present statutory law, it is not open, unlike in criminal trials in the subordinate courts, to an accused in the High Court to make a submission of no case to answer. Upon the close of the case from the prosecution, the accused must enter upon his defence.
Then comes section 314 of the same Code which is directly relevant to the issue under consideration here. The section provides as follows:
“(1) The accused or his counsel may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. The accused shall thereupon from the witness box, or such other place as the High Court may direct, and upon oath, give his evidence and answer any questions, or produce any thing, lawfully put to, or required of, him by the High Court or in cross-examination.
(2) If the accused refuses or neglects to -
(a) be sworn;
(b) give evidence;
(c) answer any question lawfully put to him by the High Court or in cross-examination;
(d) produce any document or thing which he is lawfully required to produce;
such refusal or neglect may be commented upon by the prosecution and may be taken into account by the jury in reaching its verdict.
(3) Where an accused elects to call other witnesses other than himself, his evidence shall be taken before that of any other witness for the defence.
(4) After the accused and his witnesses, if any, have been called and after their examination, cross-examination and re-examination, if any, the accused or his counsel may sum up his case.”
It will be seen that inspite of the mandatory provision under section 313, requiring an accused person to enter upon his defence at the close of the prosecution’s case, the Legislature envisaged that an accused may, nevertheless, refuse to testify and provided the consequence that would attend such refusal, namely, that such refusal may be commented upon by the prosecution and may be taken into account by the jury. Significantly, that is the only consequence provided. The loss of right on the part of the accused to call a witness or witnesses in his defence is not provided under the section. Surely, the Legislature would have expressly said so if it had intended to attach such a drastic consequence or penalty.
We have considered section 314(3). It might be argued that according to this section, the giving of evidence by the accused himself is a condition to his calling witnesses. With respect, we don’t think that argument is tenable. In our view, the section simply regulates the order in which evidence for the defence is to be given, namely, that where an accused decides to call defence witnesses in addition to himself, then he must testify first, followed by the witnesses. It follows that should the accused elect not to testify himself, then his witnesses would come on, as a matter of course. In short, we are satisfied that the fact that an accused person has elected not to give evidence at his trial, does not prevent him from calling his witnesses.
Section 42(2)(f) of the Constitution is also instructive. Section 42(2)(f)(iii), on the one hand, gives an accused the right to remain silent and not to testify during trial. Section 42(2)(f)(iv), on the other, gives an accused the right to adduce and challenge evidence. There is no doubt in our minds that the latter right includes the right on the part of the accused to adduce and challenge evidence himself or by way of calling witnesses. The two are separate and distinct rights. In the result, even from the constitutional point of view, the fact that an accused has elected not to give evidence at his trial, which is his constitutional right, does not deprive him of his other constitutional right to call witnesses in his defence.
All in all, we are satisfied, looking at the facts as a whole, that none of the irregularities just discussed caused any prejudice in this case, either to the prosection or to the defence, or any miscarriage of justice.
In the result, the 3rd appellant’s conviction cannot be faulted.
We have considered the sentence that was imposed. Needless to mention that armed robbery is a very serious offence. It attracts a sentence of life imprisonment or capital punishment. The offence is also alarmingly on the increase. Condign punishment is, therefore, merited for this kind of offence. Having regard to all the facts and circumstances of this case, we are of the view that the sentence that
was handed down by the lower Court cannot be described as manifestly excessive or wrong in principle. It is, therefore, confirmed.
Accordingly, the 3rd appellant’s appeal fails, and it is dismissed in its entirety.
In conclusion, we wish to make a passing comment with regard to the above-mentioned sections 313 and 314 of the Criminal Procedure and Evidence Code. The observation we wish to make is that in providing that an accused should mandatorily enter upon his defence at the close of the prosecution’s case, section 313 is inconsistent with section 42(2)(f)(iii) of the Constitution which, as we have seen, confers upon an accused the right to remain silent during his trial. In the same vein, we also have problems with section 314. Since an accused has such a right under the Constitution, not to testify, it seems to be a negation of that right to impose a penalty where he exercises the right and chooses not to give evidence. For these reasons, we are of the view that both sections 313 and 314 are inconsistent with the Constitution and we would recommend to the Law Officers to look at these provisions and take appropriate action.
DELIVERED in open Court this 16th day of December 1998, at Blantyre.
R A BANDA, CJ
L E UNYOLO, JA
H M MTEGHA, JA