IN THE
HIGH COURT OF
PRINCIPAL
REGISTRY
Miscellaneous Criminal
Application Case Number 51 of 2003
CHIMWEMWE GULUMBA
Versus
THE REPUBLIC
In the Second
CORAM: D F MWAUNGULU
(JUDGE)
Gulumba, Legal
Practitioner, for the applicant/appellant
Nayeja, Senior State
Advocate, for the respondent
Chisi, the official
court interpreter
Mwaungulu,
J
JUDGEMENT
Initially this was the
defendant’s application for bail pending appeal. I decided to hear the
substantive appeal instead. The defendant in the lower court appeals against
conviction and sentence. The
If the question on the
appeal against conviction, the same question as in the lower court, is whether,
on the law and evidence in the lower court, the defendant is guilty of the
crime, there is no merit in the appeal. Of course the lower court was
overzealous in accepting and analyzing certain aspects of evidence. The
defendant is justified in assailing some findings of fact. Some findings of
fact are perverse and unsupported by the evidence. Fortunately, those
objectionable findings were, in my judgment, unimportant, as we see shortly, to
the crucial matter before the lower court and this Court. On the crucial
findings, on the law on the matter, the lower court’s verdict is faultless.
The lower court’s
findings were that the complainant, whose only mistake was vigilance in pursuing
her debtor, the defendant, suffered serious injuries and destruction to her
clothing at the defendant’s hands. In the lower court the defendant’s
contention, repeated in this Court, was she was the victim and only acted in
self defense in assaulting the complainant in the course of which she tore the
complainant’s clothes. The lower court took two perspectives to the defendant’s
defense. First, on the evidence, the lower court rejected the defendant’s
testimony preferring the complainant’s version of events. Secondly, the lower
court thought, if it erred in this finding, the defendant used excessive force.
On the first
perspective, the criticism that the lower court never considered the
defendant’s defense cannot be proper. Of course, the rules of burden of and
standard of proof require the prosecution, where the defendant raises a
defense, to show that the offence was committed without the defense. The court
is, therefore, under a duty not only to consider the defense the defendant
actually raises but any defense which, though not expressly or tacitly raised
by the defendant, the evidence before the trial court raises. This rule is
based on common sense and the remarks of the Supreme Court in Republic v
The lower court,
however, thought that, even if the defense of self defense availed the
defendant, the defendant used excessive force. That conclusion is, on the
evidence and on principle, faultless. Self defense is a total defense to any
crime involving violence and injury to a person. The defense excuses or
justifies certain crimes involving violence and injury to a person. It is a
defense of necessity. That necessity only arises to the extent that the
defendant’s action is necessary for self preservation. The defense is
unavailable to one who acts beyond that necessity and acts in vengeance or uses
more force than is necessary for self preservation.
There was, in my
judgment, material before the lower court for arriving at whatever conclusion.
This Court seldom, in such circumstances, interferes with the lower court’s
findings. This Court on appeal or review proceeds by way of rehearing. The Court
examines all the evidence in the court below, subjecting the evidence for
relevance and admissibility and mindful that, unlike the reviewing court, the
lower court has the advantage of seeing the witnesses and assessing
credibility. Generally, where there is evidence to establish a fact one way or
the other and a tribunal of fact, a judge or jury, as the case may be, decides
one way, it is rare, and I think impossible, for an appellate court to reverse
the finding of fact. A fortiori an
appellate court will, as a matter of principle, reverse a finding of a tribunal
of fact where there is no evidence to support a finding. There is no evidence
to establish a fact where, for admissibility, weight or credibility, a tribunal
of fact rejects the evidence. 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.”
It was important to
restate these principles, most of them established in this Court in Patel v R (1923) 1 A.L.R. (Mal) 894; and
R v Mamanya (1964-66) 3 A.L.R. (Mal.)
271, in the Federal Supreme Court in Chipembere
v R (1962-63) 2 A.L.R. (Mal) 83 and the Supreme Court of Appeal in Pryce v Republic (1971-72) 6 A.L.R. 65;
and Idana v R (1964-66) 3 A.L.R. 59,
because of matters Mr. Gulumba and Ms Nayeja, the appellant’s legal and
respondent’s legal practitioners respectively, raised in the appeal.
There is one final point raised for the
defendant in relation to the conviction for malicious damage. Miss Nayeja and
Mr. Gulumba thought that the conviction could not stand. The damage to the
shirt was in the course of the fight, the defendant wanting to injure the
complainant and damaging the property in the process. Both counsels urged me to
acquit the defendant on the malicious damage count because the defendant,
having only wanted to injure the complainant and only damaged the property in
the course of the other crime, could not have damaged the shirt willfully. This
is unacceptable.
Where one act or transaction results in
many crimes it is in the discretion of the prosecution, subject to the rule
about de minimis, to charge the
defendant for all or any of the crimes the situation creates. Where the prosecution charges the
defendant of all crimes and proves all or some of them, I know of no principle,
apart from the principle of de minimis and
the inherent power of the court over proceedings that are an abuse of the
process of the court, entitling a
court to exclude any crime the prosecution proves. The question is whether the
prosecution had proved the offence of malicious damage.
Both Ms Nayeja and Mr. Gulumba thought
that on the facts the lower court accepted, the defendant did not willfully
destroy the clothes, she only intending to injure the complainant. The argument
is, as I understand it, that the defendant never intended to destroy the
property. This submission, in my judgment, can only be premised on the narrower
understanding of the word ‘willfully.’ The understanding of the word
‘willfully’ under section 344 and, indeed, under other provisions in the Code,
is informed, under section 3 of the Code, by the meaning of the word under
English Criminal Law. The word there is not understood only to mean
‘deliberately’ or ‘voluntarily’. It covers both intention and recklessness.
One, in my judgment, acts willfully not only where what one does is as result
of his volition but also, where the immediate acts is as a result of ones
volition, the consequence of his willful act are matters known by all
reasonable men and women to follow naturally from his act of volition. If a man
intends to shoot an attendant inside a shop through a glass window, destruction
to the window, even though not the immediate concern, is a result of his
willful act and therefore acts willfully in destroying the window.
In R
v Sheppard [1981] AC 394, Lord Diplock, dealing with willful neglect of a
child, said:
“… on a charge of willful neglect of a
child under section 1 of the Children and Young Persons Act 1933 by failing to
provide adequate medical aid, …the jury must be satisfied (1) that the child
did in fact need medical aid at the time at which is charged with failing to
provide it (the actus reus) and (2)
either that the parent was aware at the time that the child’s health might be
at risk if it were not provided with medical aid, or that the parent’s
awareness of this fact was due to his not caring whether his child’s health
were at risk or not ( the mens rea).
Lord Diplock thought this last component
implies recklessness. In Metropolitan Police
Commissioner v
“… a person charged with an offence
under section 1 (1) of the Criminal Damage Act 1971 is ‘reckless as to whether
any such property would be destroyed or damaged’ if (1) he does an act which in
fact creates an obvious risk that property will be destroyed or damaged and (2)
when he does the act he either has not given thought to the possibility of
there being in such risk or has recognized that there was some risk involved
and has nonetheless gone on to do it.”
Under English law, therefore, ‘willfully,’ as
used in section 344 (1) of the Penal Code connotes intention or recklessness.
The offence however is ‘malicious’ damage to property. Malice is therefore part
of the crime. In English law the Court of Appeal in R v Cunningham [1957] 2 QB 396:
“. . . malice must be taken . . . as
requiring either (1) An actual intention to do the . . . harm . . .; or
recklessness as to whether such harm should occur or not (i.e., the accused has
foreseen that the particular type of harm might be done and yet has gone on to
take the risk of it).”
These principles apply
to understanding malicious damage under section 344 (1) of the Penal Code. The
defendant did not intend to damage the complainant’s shirt. He knew or ought to
have known that, in attacking the complainant like the defendant did, his
action, albeit directed to the person, would damage the complainant’s shirt.
That, in my judgment, is enough to bring the defendant’s action s in the
purview of section 344 (1) of the Penal Code.
The appeal against
conviction, unlike the appeal against sentence, must fail. The sentencing
approach is the same in malicious damage and assaults occasioning actual
grievous bodily harm as for other offences. The sentencing court must regard
the nature and circumstances of the offence, the offender and the victim and
the public interest
Sentences courts pass,
considering the public interest to prevent crime and the objective of
sentencing policy, relate to actions and mental component comprising the crime.
Consequently, circumstances escalating or diminishing the extent, intensity or
complexion of the actus
Besides
circumstances around the offence, the sentencing court should regard the
defendant’s circumstances generally, before, during the crime, in the course of
investigation, and during trial. The just sentence not only fits the crime, it
fits the offender. A sentence should mirror the defendant’s antecedents, age
and, where many are involved, the degree of participation in the crime. The
defendant’s actions in the course of crime showing remorse, helpfulness,
disregard or highhandedness go to sentence. Equally a sentencing court must
recognize cooperation during investigation or trial.
While
the criminal law is publicly enforced, the victim of and the effect of the
crime on the direct or indirect victim of the crime are pertinent
considerations. The actual circumstances for victims will depend, I suppose, on
the nature of the crime. For example for offences against the person in sexual
offences, the victim’s age is important. An illustration of circumstances on
indirect victims is the effect of theft by a servant on the morale of other
employees, apart from the employer.
Finally,
the criminal law is publicly enforced primarily to prevent crime and protect
society by ensuring public order. The objectives of punishment range from
retribution, deterrence, rehabilitation to isolation. In practice, these
considerations inform sentencing courts although helping less in determining
the sentence in a particular case.
The
offence of an act causing grievous bodily harm comprises of the unlawful act
and the grievous bodily harm. The sentence should, therefore, reflect the
nature of the unlawful act and the extent of the grievous harm. Generally, a
heavier sentence, even if the grievous harm be moderate, is appropriate where
the defendant uses a lethal weapon. Conversely, where the grievous harm is
serious, the sentenced will be heavier, even though the defendant did not use a
lethal weapon. The whole matter will also be affected by circumstances,
aggravating and extenuating, around the offence. The defendant used a bamboo,
the size and nature of which the record is silent. The complainant and the
defendant are neighbours. It is unfortunate that matters turned in this way.
Malicious
damage to property involves a trespass and destruction or damage to goods.
Consequently, the sentence must, among other things reflect the nature of the
trespass and the extent of the damage. The property damaged was a shirt.
The
sentences passed were, in the circumstances, oblivious to the nature of the
offence, the circumstances in which the offence was committed, the
circumstances of the victim and the offender and the public interest. This was
an offence where a community order was appropriate. I pass a sentence as
results in the defendant’s immediate release. To that extent alone the appeal
succeeds.
Made
in open court this 15th Day of April 2003
D F Mwaungulu
JUDGE