IN THE
HIGH COURT OF
PRINCIPAL
REGISTRY
Criminal Appeal number
29 of 2003
ALEXANDER KUMBIKANO
Versus
REPUBLIC
In the
CORAM: DF MWAUNGULU
(JUDGE)
Makhalira, Legal
Advocate, for the appellant
Chimwaza, Deputy Chief
State Advocate, for the respondent
Kamanga, the official
court interpreter
Mwaungulu,
J
JUDGMENT
This is an appeal
against the judgment of the Senior Resident Magistrate at Zomba. The Zomba
Senior Resident Magistrate convicted the appellant with three others of
robbery. Robbery is an offence under section 301 of the Penal Code. The Senior
Resident Magistrate sentenced the appellant and the others to ten years
imprisonment with hard labour. The appellant is the only one who resorted to
this Court. The rest have not appealed. This Court could not review the matter
under section 15 of the Criminal Procedure and Evidence Code because of this
appeal. In considering the appeal, therefore, I will review the matter touching
the defendants who have not appealed.
It is necessary to
review the matter against the others who have not appealed in this appeal
because what the appellant raises applies, at least, to two defendants who have
not appealed. The Senior Resident
Magistrate obviously did not direct her mind 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.
What
we know on this matter is not complex and, if it helps to resolve this appeal,
is as follows. On the night of
In that confession the
first defendant in the court below mentioned the three defendants in the court
below who included the appellant. Of
course, besides this statement, the first defendant, before making the confession
statement to the police, led the police to the other defendants connecting them
with a robbery at Mrs. Dulama’s grocery.
In the court below there was no evidence that there was a confrontation
of the defendants. Consequently, there was no evidence of the other defendants’
reaction when accused of the crime. A
court can most certainly infer guilt from conduct or statements admitting a
crime when the defendant is accused of a crime. In Useni
v R (1964-66) 3 ALR (Mal) 250, this Court approved this statement from R v Lambe (1971), 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.”
In this particular
case, there was no evidence that the other defendants through conduct or
statements admitted the crime. More
importantly there was no evidence in the court below that the other defendants,
in terms of section 176(2) of Criminal Procedure and Evidence Code, adopted the
first defendant’s confession statement.
The lower court could not, as it clearly did, use the statements in the
first defendant’s confession statement as evidence against the other
defendants.
At the close of the
prosecution case, there was no case to answer. Where at the close of the
prosecution case all there is is a statement in another’s confession connecting
the defendant with a crime, unless the defendant adopts the confession, there
is no case to answer against the defendant. The trial court should acquit the defendant at
the close of the prosecution case and not call the defendant to enter his
defense.
I
agree with Mr. Makhalira’s and Ms. Chimwaza’s submissions that the conviction
of the appellant is not sound in law and in fact. I therefore, allow the appeal. I set aside the conviction and the sentence
against the appellant. In the same vein,
I set aside the convictions and sentence of the third and fourth defendants in
the court below.
Made
in
D F Mwaungulu
JUDGE