IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Criminal
Appeal number 61 of 2000
Between
KAJOLLY
KUMALERE
And
THE REPUBLIC
In the Second
CORAM: D F MWAUNGULU (JUDGE)
Tembo,
Legal Practitioner, for the appellant
Chimwaza, Deputy Chief
State Advocate, for the State
Nthole,
the official court interpreter
Mwaungulu, J
JUDGMENT
This
is an appeal from the judgment of the
The
appellant, unrepresented in the court below and when lodging the appeal, raises
five grounds: the lower court misdirected itself in convicting based on confession
of another defendant; the conviction is unsupported by the evidence; the trial
court misdirected itself in convicting the appellant when there was no evidence
of cheating, the decision was wrong in law and fact; and the sentence was
manifestly excessive. The Deputy Chief State Advocate does not support the
conviction.
In
the lower court the prosecution sought to establish several theories: the
teacher in charge of the school and other staff at the school, shortly after
the examination papers were opened, obtained the examination paper; the teacher
in charge and other staff prepared answers which they passed to students in the
examination room; and that some students sat examinations. The appellant denied
receiving examinations from the teacher in charge. The prosecution charged the
teacher in charge with the rest of the defendants. The defendants comprised of
the teachers involved in the exercise and the students who benefited from the
exercise. The appellant admitted sitting as an internal candidate at the
examination centre. His explanation was that he did not know the irregularity,
the examination number having been given to him by the examination centre.
On
the basis of these concessions of the appellant, the first ground of appeal
that the lower court erred in convicting on a confession by the teacher in
charge, must relate to the evidence that the appellant received written answers
from the teacher in charge and other staff. The appellant, from the record of
the lower court, denied receiving the worked out answers from the teacher in
charge or other staff. On oath the teacher in charge denied ever doing what he
was accused of. More importantly, he led no evidence to the effect that he
supplied the appellant or the other students with the worked out answers. The
prosecution relied on a statement by an official from the Malawi National
Examination Board that the Board had information that this is what occurred.
The evidence on this
point from an official of the Malawi National Examination Board was
inadmissible to show that the teacher in charge gave the appellant the worked
out answers. Statements from persons other than those who through the medium of
experience with the senses can testify to those facts are generally
inadmissible to prove facts in issue before a court of law. There is this
Court’s decision to the effect in Careta
v Republic (1966-68) ALR (Mal) 285. Only those who saw or heard the teacher
give the worked out answers could testify to that effect. Of course what the
teacher said on the matter could establish the fact. The teacher was accused of
the crime. A statement by the teacher or a student, accused of the crime, to
that effect was admissible. It is a confession and admissible. In Useni v R (1961-63) 2 ALR (Mal) 250 this
Court approved this statement from R v
Lambe (1791) 2 Leach 552.
““The general rule respecting this
species of testimony is, that a free and voluntary confession made by a person
accused of an offence is receivable in evidence against him, whether such
confession be made at the moment he is apprehended, or while those who have him
in custody are taking him to the magistrates … for the purpose of undergoing
his examination …. First then, to consider this question as it is governed by
the rules and principles of the common law.
Confessions of guilt made by a prisoner to any person at any moment of
time, and at any place … are, at common law admissible in evidence as the
highest and most satisfactory proof of guilt, because it is fairly presumed
that no man would make such a confession against himself, if the facts
confessed were not true.”
A confession is however evidence only against
the maker unless, of course, the other adopts it. The lower court obviously did
not direct itself to a common law rule, given statutory force by section 176
(2) of Criminal Procedure and Evidence Code:
“No confession made by any person shall
be admissible as evidence against any other person except to such extent as
that other person may adopt it as his own.”
There are decisions of this Court to the same
effect: Watson v R (1961-63) 2 ALR (Mal) 32; Twaibu v R (1961-63) 2 ALR (Mal) 532; Kumalele v Republic Cr. App. Cas. No 61 of 2000,
unreported. There are also decisions of
the Supreme Court of Appeal, one of which is Gama v R (1964-66) 3 ALR (Mal) 528. The appellant did not adopt the
statement of the teacher in charge. The appellant’s criticism that the lower
court could not employ the statement by the teacher in charge against the
appellant is germane.
On the other hand, that
the appellant and other students got worked out answers from the teacher in
charge and other facts the appellant and others accepted and the lower court found
could not make any difference to the offence the appellant and others stood
charged. Section 57 of the Education Act, on which the appellant and others stood
charged, reads:
“Any person having in his possession or
under his control any national examination paper on any part thereof, or any
information relating to any national examination or any national examination
paper, who communicates such paper or information to any person, other that a
person to who he is by duty bound or authorized to communicate it, or who uses
such paper or information for the benefit of any person or in any manner
prejudicial to, or likely to be prejudicial to, the proper and fair conduct of
any national examination shall, in addition to any other penalty to which he
may be liable under this Act, be guilty of an offence and liable to a fine of
100 and to imprisonment for one year.”
There are two aspects
to this crime. First, the defendant must have in possession or under his
control an examination paper or any information relating to any national
examination or any national examination paper. Secondly, the defendant must
communicate such paper or information to a person other than the one to whom he
is supposed to communicate or use the paper or information for the benefit of
another or in a manner prejudicial to proper and fair conduct of a national
examination.
The students, including the appellant, sitting
in the examination room certainly had the examination paper in the examination
room. They certainly never used it or communicated the paper or information to
anyone or the teacher in charge. The evidence suggests the examination paper was
probably opened in advance but we do not know by who.
The teacher however was in possession of the paper and, in my judgment,
although we are unsure about the students actually involved, used the
information to benefit some students or, which is still a crime, employed the
examination paper in a manner prejudicial to conduct of fair and proper
examination. It was wrong and a crime under section 57 of the Education Act to
use the papers to work out answers for one, some or all of the students sitting
examinations at that time. The students, who only received the papers during
the examination, could not, without more, be guilty of the offence under
section 57. The students would be guilty if it is shown there was an
arrangement that would make them principals to the crime. Concerning such an
arrangement, there is no evidence or real doubt.
The appeals against sentence and conviction are
allowed. I set aside the sentence against the appellant. I confirm the
conviction against the first defendant. The conviction and sentences against
the other defendants are set aside. The judgment should be communicated to all
of them.
Made
in open court this 12th Day of October 2001
DF
MWAUNGULU
JUDGE