IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CRIMINAL APPEAL NO. 7 OF 1998
(Being Criminal Case No. 2 of 1998)
BETWEEN:
SUDI
SULAIMANA..................................................1ST APPELLANT
- and -
BENARD
CHISALA
CHIRWA..............................2ND
APPELLANT
- and
SAMUEL
EDWARD
NTHENDA..........................3RD
APPELLANT
- and -
THE
REPUBLIC............................................................RESPONDENT
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
Unyolo, JA
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.
Sgd ....................................................
R A BANDA,
CJ
Sgd .....................................................
L
E UNYOLO, JA
Sgd ......................................................
H
M MTEGHA, JA