IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CRIMINAL APPEAL NO. 5 OF 2000
(Being High Court Criminal Case No. 31
of 1995)
BETWEEN:
KILITASI
CHIMWALA..........................................................APPELLANT
- and -
THE
REPUBLIC...................................................................RESPONDENT
BEFORE: THE
HONOURABLE MR
JUSTICE UNYOLO, JA
THE HONOURABLE MR JUSTICE
MTEGHA, JA
THE HONOURABLE MR JUSTICE
TAMBALA, JA
Gama, of Counsel, for the
Appellant
Jaffu (Miss), of Counsel, for
the Respondent
Chirambo (Mrs), Official
Interpreter/Recorder
J U D G M E N T
Unyolo, JA
On 7th May, 1999, the appellant
was convicted by the High Court sitting at Zomba of murder, contrary to section
209 of the Penal Code and was sentenced to death. He appeals against the conviction on the ground that the verdict
was unsafe and could not be supported, having regard to the evidence.
The deceased was a married
woman. She was working as a Librarian
at Chancellor College in Zomba and resided at Kalimbuka, in the same
Municipality of Zomba. There was no
dispute that the deceased was attacked in her house by some intruders during
the early hours of 22nd December, 1994.
The intruders gained access into the house by breaking a window. She received eleven stab wounds in the
attack from which she died on 27th December, five days later.
The prosecution case was that
it was the appellant and his friend, one, Michael Nkoloma, who burgled the
house and attacked the deceased. The
prosecution relied, first, on the evidence of the deceased’s niece, PW2, who
told the Court below that she was at all material times residing with the
deceased when, at about 3.00 am on the relevant day, she heard the deceased
screaming for help. She said that she
came out from her bedroom and found the deceased lying in the corridor and someone
hitting her using a weapon. She identified
the appellant in Court as the person she saw assaulting the deceased.
Secondly, the prosecution
relied on fingerprint identification evidence.
It was in the evidence that one of the fingerprints which were lifted
from the broken window pane at the deceased’s house was found to be identical
with the middle finger impression of the appellant.
The prosecution also relied on
the caution statement the Police obtained from the appellant. In the statement, the appellant is recorded
as having said that he and his friend, Michael Nkoloma, went to the deceased’s
house on the material day to steal and that it was actually Michael Nkoloma who
went into the house, after breaking the window, using a stone. Further, he is recorded to have said that
shortly after Michael Nkoloma had entered the house, he heard a woman screaming
inside, that she was dying, and that when he heard this and shouts of “thief”,
“thief”, he ran away.
The appellant’s case was
essentially an alibi. He told
the Court below that he was in Blantyre, not Zomba, the day the incident at the
deceased’s house took place. He said he
was staying with his uncle there. In
cross-examination, the appellant said that he was unable to call his uncle as a
witness, because he died while he was in prison. He said there was no one else who saw him in Blantyre.
With regard to the fingerprint
identification evidence, the appellant told the Court below that the Police
must have surreptiously got the fingerprint during a visit to the deceased’s
house, where they forced him to demonstrate how he and his friend entered the
house.
Finally, concerning the
caution statement, the appellant denied making the statement. He said that the police officer
investigating the case just brought the document to him already written and
forced him to sign it, which he did, to avoid being beaten. He told the Court that he knew Michael Nkoloma
only in prison.
The usual process of Counsel’s
addresses and the Judge’s summing-up followed.
The jury retired, and before long, they came up with a unanimous verdict
finding the appellant guilty of murder, as charged.
The first point taken by
Counsel for the appellant was that the learned trial Judge erred in not warning
the jury, in his summing-up, of the special need for caution before finding the
appellant guilty in reliance on the correctness of PW2's identification of the
appellant. Counsel pointed out that
PW2's own evidence was that she saw the deceased’s assailant only for ten
seconds. Counsel argued that this was
too short a time for the witness to see the assailant sufficiently and be able
to say with certainty who it was.
Counsel stated that this was more so in the present case, where there
was no attempt made to have the witness
identify the appellant before the trial, like at an identification parade, soon
after the appellant was arrested, and not as was done, to ask the witness to
identify the prisoner for the first time only during the trial. Counsel submitted that for these reasons,
there was need for the learned trial Judge to warn the jury of the need for
caution in relying on PW2's evidence when arriving at their decision.
Pausing here, it is to be
observed that although dock identification in which a witness makes his or her
identification of an accused for the first time only in court is legally
admissible, it is generally considered to be a most unsatisfactory method of
proof. Indeed, the whole question of
visual identification of suspects by witnesses has for many years been
acknowledged as problematic and potentially unreliable, considering, among
other things, that visual memory may fade with passage of time, and the
possibility of a genuine mistake: see Bentley (1991), Crim LR 620.
Turning now to the point
specifically raised by Counsel for the appellant, we agree that the general
rule is that where a case against an accused depends wholly or substantially on
the correctness of the visual identification of the accused, which the defence
claims to be mistaken, the trial judge’s direction to the jury should include a
warning of the special need for caution before finding the accused guilty, and
the reasons for the caution. Such a
warning has come to be known as the “Turnbull” warning, following the
English case of Regina vs. Turnbull & Another (1977), QB 224. That case goes on to say that in addition, the trial judge should
direct the jury to examine closely the circumstances in which the
identification was made. In our view,
these are vitally important matters.
Referring to the case in hand,
the relevant part of the learned trial Judge’s summing-up appears at page 44 of
the record, where he said:
“The case for the
State, Members of the Jury, is that the intruder is the accused person now in
the dock. The State brought witness
PW2, Miranda Nkunika. She said that she
saw the accused person attacking the deceased, in her evidence she said that
she had enough time to identify the accused person because of the light from
the dining room and that the accused was facing where she was coming from. She also said that their eyes locked for 10
seconds before she retired to her bedroom where she started shouting to
outsiders. It is for you to decide
whether she could have identified the accused person there or not.”
In all fairness, the learned
trial Judge did his best in his summing up on this point, but with the greatest
respect, he did not go far enough in terms of the principles enunciated in the Turnbull
case, with which we agree. It was
necessary, in our view, for the learned trial Judge to warn the jury of the
dangers that are inherent in identification evidence, as we have shown, and the
need, therefore, for caution before finding the appellant guilty in reliance on
the correctness of PW2's identification of the appellant. In this regard, the learned trial Judge
should have directed the jury to closely examine the circumstances surrounding
the identification. There is,
therefore, merit in Counsel’s submission on this point.
The matter does not, however,
end there. As we have indicated, the
prosecution adduced further evidence relating to the similarity of the
fingerprint that was lifted from a broken glass at the deceased’s house on the
very day the deceased’s house was broken into and the fingerprint impression of
one of the appellant’s fingers obtained from him in the course of police
investigations. We have also indicated
that the prosecution tendered in evidence a caution statement where it is shown
that the appellant admitted having gone to the deceased’s house on the fateful
night. We have also shown that the
appellant’s assertion was that the Police must have tricked him to go to the
deceased’s house during their investigations so that they should seize the
opportunity to have his fingerprints somewhere at the scene. As regards the caution statement, it will be
recalled that the appellant’s case was that he signed the document under
duress, without knowing what it contained.
It is noted that the learned Judge did address all these matters in his
summing-up, and the jury, who had the advantage of seeing and hearing the
witness, believed the prosecution side of the story, not the appellant’s.
In conclusion, we wish to
comment on a further matter which the appellant raised in the initial grounds
of appeal he drafted on his own. He
argued there, between the lines, that the verdict of the jury could not be
supported, having regard to the fact that the knife which was used to stab the
deceased and the stone which was used to break the window were not tendered in
evidence. The record is, however, clear
on this point. PW1, a Court Clerk,
explained that the items missed between the first trial, which ended in the
jury failing to agree and being discharged, and the time the second trial,
which is the subject of this appeal, commenced. It is to be observed that the witness emerged unshaken in his
evidence. Indeed, as we have already indicated,
there was no controversy that entry into the deceased’s house was gained by
breaking a window, and there was no controversy that the deceased was stabbed.
We have considered the case
carefully and we do not, having regard to the general feel of the case and for
the reasons we have given above, think that the verdict returned by the jury
could be impugned. Accordingly, the
appeal must fail and it is dismissed.
DELIVERED in open Court this
15th day of August 2000, at Blantyre.
Sgd .......................................................
L E UNYOLO, JA
Sgd .......................................................
H M MTEGHA, JA
Sgd .......................................................
D G TAMBALA, JA