IN THE
HIGH COURT OF
PRINCIPAL
REGISTRY
Criminal Appeal Number
25 0f 2002
ALLAN GANGAWAKO
FRAZER PATSON DIMBA
REUBEN MILANZI
Versus
THE REPUBLIC
In the First
CORAM: MWAUNGULU (JUDGE)
Ngwira,
Legal Practitioner, for the Appellant
Mwenelupembe, Deputy Chief
State Advocate, for the Respondent
Nthole, the Official
Interpreter
Mwaungulu,
J
JUDGMENT
The
defendants, Allan Gangawako, Frazer Patson and Reuben Milanzi, appeal against
the Ntcheu First Grade Magistrate’s Court’s judgment. The
Our
Criminal Law, under the offence of robbery, prohibits theft and the threat or
use of force to facilitate theft. There was no doubt in the court below about
the robbery. The question, the very question before this Court, was whether the
state proved beyond reasonable doubt the appellants committed the robbery. The
prosecution’s case hinged essentially on visual identification of the
appellants by prosecution witnesses. The prosecution’s evidence of the
appellant’s identity comprised essentially of the victim’s testimony and an
identification parade. The question before this whether the evidence and the
way the lower court treated the evidence leaves this Court certain so that it
is sure it is the appellants who robbed the complainant.
The
facts the lower court found are not complicated and, if they help settle the
appeal, are as follows. Mrs. Florence Chimpakati, a wealthy woman in Ntcheu
District, was in the house with her two children and someone who visited for
that night. When they attacked that night, the assailants, armed with a rifle
and a panga knife, rounded and gagged the watchman, hacked the visitor with a
panga knife, held the children captive and surrounded Mrs. Chimpakati demanding
money and car keys. Mrs. Chimpakati surrendered the money and car keys. The
assailants fled with the complainant’s car. They abandoned the car after a
short distance.
When
Ntcheu police received the report of the robbery investigations commenced
immediately. The police arrested the appellants and recovered some money. The
police mounted an identification parade in which the watchman and one of the
complainant’s children identified the first appellant, another of the
complainant’s children identified the second appellant and the complainant, the
visitor and one of the complainant’s children identified the third appellant.
It
is necessary, for reasons appearing later, to detail, apart from the
identification parade, which I consider later, the evidence on the
identification to determine the quality of identification the lower court based
the judgment upon. When the assailants entered the complainant’s room, the
complainant switched on the lights, electric bulbs. The assailants got near to
the bed where she slept. Two assailants stood at the base of the bed. One stood
near the headrest. Where the assailants jumped into the fence and the watchman
was, there was a security light. In the room where the complainant’s children
slept, it is unknown whether there was lighting and, if there was, whether it
was on at the time the assailants attacked. One child told the court below that
he did not identify any assailant. She told the court below that the assailant
who entered their room was brown in complexion and had a scar on the cheek. The
other, on the evidence on the record, set to see what happened to her mother. It
is unclear whether she got to the room. She told the court an assailant asked
her to go back to her room. If she went to her mother’s room, on the
complainant’s evidence, there was light there. The court must resolve the doubt
for the appellants. In the room where the visitor slept, the assailants
switched on the lights. The visitor told the lower court that he identified the
man who attacked him. The other two were also in the room, it is clear that
this witness did not identify these. The third complainant’s child rushed out
into the fence when she heard the watchman groan. Outside, as the prosecution
evidence showed, there was a security light. She was bundled into the room
where the visitor was. There too, there was light.
The
prosecution, it seems, never intended to tender the evidence of the
identification parade. The identifying witnesses raised the identification
parade evidence only when cross-examined by the appellants. The lower court,
just like this Court, never had details of the parade. All that there is on the
parade, therefore, emanates from the appellants’ evidence in the lower court. The appellants’ evidence and defenses were
essentially the same. All the appellants raised the defense of alibi; they were
not at the scene of the crime.
The formidable points raised by Mr.
Ngwira, legal practitioner for the appellant and Mr. Mwenelupembe, the Deputy
Chief State Advocate, who vehemently, supports the conviction, requires
restating principles guiding appellate courts on an appeal where, like here,
the appellate court may revisit findings of fact of a trial court. The Supreme
Court laid the principles in Pryce v
Republic (1971-72) 6 ALR (Mal) 65. There is an apt statement of the
approach by Skinner, C.J., a statement with which Chatsika and Barwick, JJA
agreed:
“In our opinion the proper approach by
the High court to an appeal on fact from a magistrate’s court is for the court
to review the record of the evidence, to weigh conflicting evidence and to draw
its own inferences. The court, in the
words of Coghlan v
The Malawi Supreme Court of Appeal followed Pryce Republic in Msemwe t/a Tayambanawo Transport v City Motors [1992] 15 MLR 302.
In Makonyola v Republic Criminal
Appeal case Number 13 of 2003, unreported, this Court said:
“This approach, to my mind, requires
the appellate court, where there was no jury at first instances, to regard all
evidence which is the basis of facts the lower court finds. Beyond the
questions of credibility, the court, in my judgment, must consider whether the
evidence, subject to section 5 (2) of the Criminal Procedure and Evidence Code,
could have been excluded on any rules of evidence or otherwise. More
importantly, the appellate court must scurry the record to see if there was
evidence at all and, if there was evidence at all, whether it was sufficient to
justify the finding of facts the lower court based its decision upon.”
One point Mr. Ngwira
takes for the appellant is that the police irregularly mounted the
identification parade. In this matter, no doubt, the police were under a duty
to mount an identification parade. The duty to mount an identification parade
arises whenever prosecution witnesses state that they can identify the
defendants and the suspect questions the identification. Just as there is a
duty to mount an n identification parade there is also a duty to conduct the
parade properly so that the evidence, if there be positive identification, is
of a quality that points beyond reasonable doubt the guilt of the suspect.
Where, like here, there should be and there is an identification parade, there
is a duty on the prosecution to lead evidence of the parade and the manner in
which it was conducted. A court will ignore evidence from an identification
parade where the identification parade is flawed in material respects (Gadeni v R (1961-63) 2 A.L.R. (Mal) 34; Andrew v Republic (1971-72) 6 A.L.R.
(Mal) 297; and Chibwana v Republic [1981-83]
10 M.L.R. 162) In Andrew v Republic at 299, Edward, J., in this Court, said:
“There is no evidence in the record that
such an officer was present at the identification parade. If none was present,
that circumstance does not of itself vitiate the identification parade which
should certainly be conducted by a police officer of higher rank than
constable; and if it is not, that is a matter for comment. It is also desirable
that an officer conducting an identification parade should be an officer other
than the officer in charge of the investigation in connection with which the
parade is held. I would further point out that the [police officer under whose
control an identification parade is held should give evidence of the formation
of the parade, whether the persons on the parade were of similar build, height
and dress to the accused’s, whether the accused was allowed to choose his
position in the parade, and so on..”
Andrew v
Republic was
a case where, like here, there was a marked inadequacy of the evidence
concerning the holding of the identification parade; the only officer concerned
in the conduct of the parade may well have been the constable investigating the
case against the accused; there was little evidence against the defendant’s
complaint about the conduct of the identification parade. Edward, J., said;
“The learned magistrate was not,
without investigating the accused’s complaint in any way, entitled just to
disbelieve it, albeit he accepted the complaint as a witness of truth. In a
case like the present one, which turns on identifications, the failure to
investigate the complaint in my judgment vitiates the conviction.”
In this matter, the prosecution never called
the officer who conducted the identification parade. The identification parade
evidence only arose in cross-examination of prosecution witnesses, including
the investigating officer. We have very little and unreliable account of the
identification parade from the prosecution witnesses. The little that there is
on the defense adds up to complaints, uninvestigated by the lower court, about
the persons and the manner in which the parade was conducted. I do not think,
with all these problems, any importance can be given to the evidence of that
identification parade.
That
leaves the prosecution’s evidence of identification I referred to earlier. Mr.
Mwenelupembe, the Deputy Chief State Advocate, argues that there was sufficient
evidence, most of it referred to by the lower court, to justify identification
of the appellant. In my judgment, for all it is worth, the evidence leaves
reasonable doubt. Mr. Ngwira, appearing for the appellants, thinks, correctly,
in my judgment, that the complainant’s own identification is doubtful. Early in
her testimony she suggested identifying the assailants. Later it seems she
relied on the watchman’s identification. Her evidence was very critical to the
lower court’s findings because it was her who, at least, from the lower court’s
perspective, tallied longer with the assailants. I read the testimony of two
children over and over. There is no evidence that there was or there was no
light in the room. One of the two actually conceded not identifying any of the
assailants. The visitor and one child had light in the room they eventually
ended in. This child went outside where there was light. The lower court could
properly rely on their evidence. There is no evidence to support the lower
court’s finding that the assailants did or never wear masks. The lower court’s
finding that the assailants wore masks is, therefore, not based on any evidence
on the record.
The
lower court, however, was oblivious to the Court of Appeal decision in R v Turnbull and Others [1977] Q.B. 224,
a decision approved in this Court in Republic
v Malikesi and Another Confirmation case number 640 of 1994, unreported,
and re-emphasised in many decisions thereafter. Before this decision, there
were previous decisions of this Court: Republic
v Chauma, Confirmation case number 235 of 1981, unreported, and Ng’oma v Republic Criminal Appeal case
number 51 of 1981, unreported. In the latter case Kalaile, J., applied the
House of Lord’s decision in Arthur v
Attorney General of
In
this particular case, on review of the prosecution evidence on visual
identification and the court’s approach to the evidence, there reasonable
doubts, about the appellants’ guilt. I am mindful of the State’s argument that
may be, for the lower court, the identification parade was not consequential.
On the other hand, given the matter turned out on the identity of the
assailants’ by prosecution witnesses, it is difficult to separate the
identification parade evidence from the overall picture affecting the identity
of the appellants in the mind of the court. This inseparability, in my
judgment, takes this case out of the sort of considerations in section 5 (2) of
the Criminal Procedure and Evidence Code.
The close connection between the
identification parade and the identification evidence complicates determining
whether rejection of the evidence of the identification parade would not have
affected the verdict. Moreover, a finding of fact on the assailant’s identity
was not based on any evidence on the record: except for the suggestion that one
assailant had scars, contrary to the lower court’s finding that the appellants
never wore masks, there was no evidence that the appellants wore or never wore
masks. The lower court speculated on the appellants wearing masks just as he
speculated, in the absence of a scintilla of evidence, the appellants made
sexual advances on the complainant.
Clearly, the lower
court, although it considered the evidence pertaining to the appellant’s
identity, never considered the R v
Turnbull directions. In those circumstances, the verdict is unsafe. The
direction ensure that there is no mistake as to the identity of the assailants
and avoid miscarriages of justice. The R
v Turnbull directions impose on a court at first instances to bear the
warning and expose to itself the weaknesses and dangers of identification
evidence generally and in the specific case (R v Keane (1977) 65 Cr. App.R. 247. The Privy Council in R v Beckford and Others (1993) 97
Cr.App.R 409 at 415 has held that failure to give a Turnbull warning “will nearly always by itself be enough to invalidate a conviction which is
substantially based on identification evidence.” Although not bound by the
decision, it is strongly persuasive and, in my judgment, represents good law.
I therefore allow the
appeal against conviction and sentence. I therefore set aside the sentence.
Made in open court
this 4th Day of August 2003.
D F Mwaungulu
JUDGE