IN THE
HIGH COURT OF
PRINCIPAL
REGISTRY
Criminal Appeal number
13 of 2003
VINCENT MAKONYOLA
Versus
THE REPUBLIC
Being Criminal Case number 200 of 2002
CORAM: MWAUNGULU (JUDGE)
Chalamanda,
Legal Practitioner, for the Appellant
Kamwambi, Chief State
Advocate, for the Respondent
Vokhiwa, Official
Recorder
Mwaungulu,
J
JUDGMENT
Vincent Makonyola, the
fourth defendant in the court below, appeals against the judgment of the
In the morning of 3rd
December, 2002 there was a robbery at Namadzi Agricultural Development and
Marketing Corporation market. The lower courts finding of fact are found from
page J 39 of the untyped judgment. The lower court found the robbery occurred
around
The police immediately
mounted a search. The police arrested one robber, the third defendant in the
court below. This robber led the police to the other two, the first and second
defendants in the court below. At Namadzi police station, the third defendant
told the police that the appellant masterminded the robbery to conceal a huge
shortage at the market. The lower court found that the third defendant accused
the appellant in the appellant’s presence at the police. The lower court found as
a fact that the appellant remained silent. The lower court also found that the
third defendant produced at the police, in the appellant’s presence, a map the
appellant, allegedly, gave the robbers to facilitate the robbery. All the
defendants, including the appellants, made statements to the police denying
involvement in the crime.
The lower court found
that the appellant and the others were guilty of conspiracy to commit a felony
and robbery because they met in Zomba and discussed the robbery at Namadzi
Agricultural Development and Marketing Corporation market. The lower court
accepted the first and second defendant’s evidence that the appellant went to
Zomba to give them the plan. The lower court accepted the first defendant’s
evidence that on
The appellant, though
counsel assails the lower courts verdict and sentence on several aspects in the
petition of appeal. Essentially there are there categories of discontent. The
first two grounds question the lower court’s finding, at the close of the
prosecution case, that the appellant had a case to answer. It is contended that
the lower court’s improper ruling occasioned a failure of justice. One ground
complains of the lower court’s failure to consider the appellant’s testimony.
The other ground asserts, in very strong terms, that on the evidence, the lower
court could not have convicted the appellant of robbery or conspiracy to commit
a crime.
The formidable points
raised by the appellant and the Chief State Advocate, who vehemently, supports
the conviction, necessitate restatement of principles guiding an appellate
court on an appeal from a trial court where, like here, the court can also
revisit the finding of fact. The Supreme Court laid the principles in Pryce v Republic (1971-72) 6 ALR (Mal)
65. I reproduce 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 v Republic in Msemwe t/a Tayambanawo Transport v City Motors [1992]
15 MLR 302.F
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.
I can easily handle the
criticism of the lower court’s finding of a case to answer for the appellant at
the close of the prosecution case. The right to such a finding in magistrate
courts is statutory. There is a duty on the court in subordinate courts, as decisions
of this Court, R v Laxmidas (1923-61) 1 ALR (Mal) 409, Zinyose v Republic (1966-67) 4 ALR (Mal) 626 and Republic v Salirana [1987-89] MLR 63, and
the Supreme Court, Abraham v Republic (1968-69) 5 ALR (Mal) 187, show, to decide, at
the close of the prosecution case, whether a case has been made out requiring a
defendant to defend himself. Prior to section 254 of the Criminal Procedure and
Evidence Code, the defendant had to plead at the close or any time thereafter
that there was no case to answer. Failure to acquit, as Harold v R (1923-61) ALR (Mal) 538 and Day v R (1923-61) 1 ALR (Mal) 625 demonstrate, where there is no
case to answer at the close of the prosecution case, is fatal to the conviction.
A magistrate must therefore decide at the close of the prosecution case that
there was no case to answer.
On the evidence that
there was at the close of the prosecution case, the lower court’s finding of no
case to answer is, in my judgment, faultless. The lower court was under a duty
to put the appellant to his defense when it found, properly in my view, that
there was evidence which, without contradiction from the defendant, would found
a conviction. A magistrate must put a defendant to her defense where, at the
close of the prosecution case, there is evidence, which if the defense does not
countermand, a court could properly convict. There was such evidence before the
lower court at the close of the prosecution case. Circumstantial evidence and
statements outside court, subject to what comes later, associated the appellant
with the crime. I cannot understand the appellant’s contention in the court
below and in this Court that theft, an ingredient of robbery never occurred.
There was evidence that money was stolen. Part of the money was found on some
of the defendants. Of course, at that stage it was clear the money was not
taken by the appellant. The state, however, proceeded on there being a
conspiracy, a thing I comment on later, and that approach connects the
appellant with the crime. Much of that evidence, at that stage, remained
unscathed by cross-examination. This ground, therefore, is unsuccessful.
The appellant’s
complaint that the lower court never considered his evidence in defense is
germane. Of course, in a long and detailed judgment, the court below rehearses,
without analysis, all the prosecution and defense evidence. The lower court
dedicates a very small proportion of the judgment to analysis of the
evidence. In that analysis, the lower
court only refers to the prosecution evidence and evidence from the other
defendants. The lower court does not
refer to the appellant’s evidence at all.
There might be just a question of style here, the lower court probably
not referring to the appellant’s evidence because it rejected it. A trial court must, however, be evenhanded in
treating not only the defense evidence but the defenses the defendant
raises. Failure to consider a possible
defense is fatal to a conviction.
This appeal, however, turns on the
appellant’s main contention that on the evidence before the lower court the
court below could not convict the appellant of the offences of robbery with
violence and conspiracy to commit a felony.
I have examined the evidence on the record and the lower court’s
findings of fact. The lower court’s
certain findings of fact have no evidential support; other findings of fact are
based on nebulous evidence the lower court accepted. Apart from circumstantial evidence, which I
consider later, two aspects of evidence were crucial to this case. First, there was the third defendant’s
assertion at the police that the appellant masterminded the robbery. The third defendant’s assertion itself is no
proof of a fact in issue. The appellant’s
reaction to the assertion is very critical.
Obviously, if the appellant admitted the assertion, the appellant’s
statement is admissible as an exception to the hearsay rule. What the defendant says before prosecution
witnesses is not hearsay but a confession.
If authority is needed, it is a statement in R v Lambe (1791), 2 Leach 552, approved in this Court in Useni v R (1964 – 66) 3 ALR (Mal) 250,
255:
“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 …”
The principles are subject to another rule,
more pronounced after the 1994 Constitution, that the state, where the
defendant makes the statement before people in authority, such as the police,
must inform the defendant, in clear terms, of her right to remain silent
and warn that, if made, the statement may
be used against her in a court of law.
The
admission, however, need not be by word. The admission can be by conduct
constituting positive acts or silence. It is a question of fact in each case
whether proven conduct proves admission of crime. A court can properly infer
guilt where proven conduct points to admission of a crime. Silence, where it is
proved, may or may not comport admission of a crime. It will prove crime where,
in all circumstances, all reasonable men would expect non-silence when a person
is confronted with a crime. In all cases, in my judgment, it is a question of
degree depending on the nature and circumstances of the crime and accusation.
Consequently, courts view more grudgingly reticence before people of authority,
such as the police, unless, of course, the authority informs the defendant of
her right to remain silent and warns that anything said or done may be used
against her in a court of law. Courts can safely assume that anything done or
not done in the face of all this warning may, not must, indicate guilt. Without
such warning courts are, properly so, reluctant to accept silence or conduct as
proving guilt. The defendant would be acting in ignorance of those rights or in
the mistaken belief that she was exercising her full rights under the
Constitution to remain silent all the way.
There
was no evidence that the appellant admitted the third defendant’s assertion.
The lower courts finding that the appellant remained silent is not supported by
any evidence on the record. There is no evidence from the witnesses to show the
appellant’s reaction to the third defendant’s accusations before police
officials. Detective constable Kansuli’s evidence on the accusation, the only
on the aspect, far from states that the appellant remained silent:
“Upon receiving this report, a follow-up
was made whereby the third accused was arrested. He was interviewed whereby he
revealed his two friends who had fled to Zomba. Again a follow-up was made to
Zomba and the two were found. Later in the afternoon the two were arrested. All
were interviewed together whereby they denied having robbed the place but that
they were hired by the market officer who is now the fourth accused. They were
confronted and the first accused told the police that it was the fourth accused
[the appellant] who told the police that it was the fourth accused who told
them to get him and have this money. All plans were arranged and a map was
provided for easy access. The fourth accused admitted to have given them the
map.”
The first aspect of the testimony quoted
suggests, to my mind, that the accusation was made in the absence of the
appellant with only the three defendants present. The statement ‘they were
confronted and the first accused told the police that it was the fourth accused
who told them to get him and have the money’, is unclear as to whether it
includes the appellant. Equally, it is uncertain whether the statement “The
fourth accused admitted to have given them the map,” is part of the discourse.
Even without this, the prosecution witness does not tell the court that the
appellant remained silent to the accusation. Equally, the witness does not
indicate the appellant’s reaction to the accusation about the appellant’s
participation in the crime. The lower court’s finding, therefore, that the
appellant remained silent when accused of the crime is not based on any
evidence on the record. An appellate court will, where the lower court’s
finding of fact is perverse in the sense that it is not supported by evidence
on the record, alter, a part from questions of credibility, a trial court’s
finding of fact.
The
prosecution evidence that the appellant admitted giving the map to the other
defendants, without even undermining the detective inspector’s credibility, is
affected by other considerations. From the extract of the detective inspector’s
evidence above, it is clear that the appellant made the admission at the
police. It is unclear, from the detective inspector’s evidence, whether the
admission was in the caution statement or not. It is not in the caution statement.
It can be assumed, therefore, it was made at the police but not in the caution
statement. There must be problems with this prosecution evidence why this very
crucial evidence is not covered in the caution statement. If it was in the
caution statement, the general information on the right to silence and warning
of its use in subsequent criminal proceedings would have covered it. The
detective inspector does not suggest anywhere that at any point during the
interrogation or confrontation he informed the appellant of his right to remain
silent or warned him that whatever he said, including his admission that he
supplied the map, could be used against him in a court of law. This admission,
with all these difficulties, stands alone.
The
prosecution’s case against the appellant, therefore hinged on circumstantial
evidence, to which I turn later, and proof of conspiracy to make the appellant
a principal to the offence, to which I now turn. Once again, the lower court
made findings which are not supported by the evidence on the record. On
conspiracy, this extract from the judgment illustrates the lower courts
findings:
“According to section 404 of the Penal
Code, the four indeed met to discuss about money at Namadzi ADMARC and in their
discussions the four agreed to rob ADMARC and get away with money. According to
law, the four conspired to commit a felony and the state has, in the evidence
given, proved the elements making up the offence.”
The evidence relied on for the conspiracy came
from other defendants. The other defendant’s evidence, accepted by the court
below, never suggests all the defendants meeting as the lower court found
according to the excerpt just recorded. The lower court’s own judgment records
in many places that the appellant met with some defendants separately and that
it is these defendants who communicated to others in the conspiracy, a kind of
a ‘wheel’ conspiracy, according to this Court’s judgment in Palitu and others v Republic, Criminal
Appeal number 30 of 2001, unreported. The lower court, however, found as if all
defendants met together, a ‘joint’ conspiracy, again according to Palitu and others v Republic. Whatever
the form of conspiracy, it is clear from Palitu
and others v Republic, once the prosecution proves there was one agreement,
all are guilty of the conspiracy:
“At the end, the question is whether the
defendants acted in concert. Where all people agree together and are in
communication with one another, the so called ‘joint conspiracy,’ all
defendants are guilty of the conspiracy. In a ‘wheel’ conspiracy one
co-ordinates the activities of others who are in agreement although not
communicating to one another. There all of them are guilty of the conspiracy.
In all these situations the state carries the burden to prove there was one
agreement among all and not two or more separate agreements.”
If anything, the prosecution evidence
established a ‘wheel’ conspiracy, not a “joint’ conspiracy as the lower court
thought.
Mr.
Chalamanda, appearing for the appellant here and below, submits, correctly in
my judgment, the court below could not find a conspiracy on the evidence before
it. The lower court’s approach on the law on the matter is impeccable. Relying
on a passage in Criminal Law by Smith
and Hogan, the lower court stated, correctly in my judgment that a conspiracy,
agreement, the offence’s hallmark, which is more often in private, is difficult
to prove. A court must look at the conduct and decipher whether from all that
the principals are acting on the strength of agreement to commit a felony. Mr.
Chalamanda submits on the strength of Palitu
and others v Republic that the lower court could not prove the conspiracy
on the basis of the defendants’ statements at the police.
I
have read the lower court’s judgment. It is clear that the lower court did not
rely on the defendants’ statements at the police to find a conspiracy. The
lower court relied on the appellant’s conduct during the robbery and the other
defendants’ evidence on oath. As regards the former, conscious of lacking the
lower court’s advantage of assessing credibility, the conduct, without more,
only rouses strong suspicion. The prosecution, here and in the court below,
pressed many aspects to nail the appellant with the conspiracy and consequently
with the robbery: the appellant asked a member of staff to escort him to a
toilet near the office; the appellant decided, as he had never done before, to
open the market, slightly under an hour of the usual time, at around 6.30 o’
clock a.m.; the appellant asked the members of staff to stay on longer; the
appellant stood by while other staff struggled with a robber; and that the
appellant asked one member of staff to release a robber the latter subdued
after a long time. It could be that the other conduct somehow points to culpability.
Other aspects of the conduct can be explained from the evidence before the
court below. There were indeed seven women wanting to sell maize that early.
The appellant could, even if he had never done it before, serve the women by
ordering early sales. Unless the seven women were part of the conspiracy, for
posterity we may live in the doubt of whether the appellant was part of this
robbery. Particularly so when the other aspect of the circumstances in the
chain, namely, the appellant’s ordering release of a robber is explained by
prosecution evidence that the appellant feared injury to that member of staff.
In fact, if the appellant’s conduct was disagreeable, he could have not
correctly directed the police to where the appellants fled. He could have
misled the police to defer arrest of the other defendants. The circumstantial
evidence, leaving as it does several inferences, some, of course, consistent
with innocence, is not conclusive of the appellant’s guilt beyond reasonable
doubt.
This
leaves the other aspect of evidence on which the lower court found the
appellant guilty of the conspiracy: the other defendants’ evidence on oath
suggesting a conspiracy. On this the lower court said:
“Owing to what has been said the court
is of the view that the two offences indeed took place and that it was the four
accused persons who committed them as per the evidence of PW1, 2, 3, 4 and 5
supported by the evidence of DW 1 and 3 who stated in court that DW 4 went to
Zomba to give out his plans. DW 1 also
stated that DW 3 and 4 came to his place of business to eat. They were offered a place and in the course
of eating they discussed an issue which he could not hear because he was busy
serving customers. But later in the day
DW 3 came to him with the plan. DW 1
told the court that he knew DW 3 before the incident as they always met and
chatted at his place of business. This
piece of evidence too gives the court a clue as to where DW 4 was on 2ns
December. It was in the evidence of DW 3
that the plan failed on 2nd December because DW 4 was away in
All this evidence was admissible. It matters less, according to section 242 of
the Criminal Procedure and Evidence Code as the Supreme Court of Appeal
explained in Devoy v Republic (1971-72)
6 ALR (Mal) 223; and Madinga v Republic [1993] 16 (1) MLR 263 that
the evidence was from accomplices. In Devoy v Republic the Supreme Court of
Appeal did however accept Lord Reading, CJ., statement in R v Baskerville [1916-17] All ER Rep. 38 that the practice rule
that the trial court warns itself of the danger of convicting on the
uncorroborated evidence of an accomplice crystallized into a rule of law. Indeed decisions of this Court, starting with
Patel v R (1923-61) 1 ALR (Mal) 894, and
the Supreme Court, starting with Nkata v
Republic (1966-67) 4 ALR (Mal) 52, hold that absence of such a warning is
fatal to a conviction unless, of course, there has been no failure of
justice. In this particular case the
lower court was oblivious to that the other defendants were accomplices and
that their testimony was subject to the warning just mentioned. The other defendants’ testimony is, therefore,
greatly undermined by lack of this warning.
The
question then is whether, in the absence of this warning, the conviction should
stand. This, of course, depends on
whether on the totality of the evidence before the lower court, subject to this
Court’s re-hearing, the conviction is sustainable without occasioning a failure
of justice. Failure of justice is a
neutral expression meaning failure of justice from the perspective of the
defendant, the victim and the public interest. For the defendant, the court
must avoid a miscarriage of justice through conviction of the innocent. For the
public and the victim of crime, the criminal process must be able to bring to
justice those who offend. The criminal justice system’s efficacy is grossly
undermined by a system scarcely protecting the innocent and easily freeing the
guilty. In between, there is a choice between two evils: it is a better evil to
acquit the guilty if the innocent are served thereby than convict the innocent
that we may get in all who are guilty. Consequently, the rules of the burden of
proof and presumption of innocence dictate that, in the event of reasonable
doubt, the doubt, in a criminal case, should be resolved for the defendant.
On
the evidence, as demonstrated, real doubts linger on the appellant’s guilt.
Other jurisdictions have three verdicts, guilty, not proven and not guilty. For
us the not-proven verdict still stands as a not guilty verdict. The conviction is unsafe. I allow the appeal.
I set aside the conviction and sentence.
It
seems, because of this appeal, the High Court never, as it should have done
under section 15 of the Criminal Procedure and Evidence Code, reviewed the
sentences on the other defendants. Courts, and this has the imprimatur of the
Supreme Court of Appeal, deprecate including a conspiracy charge where, like
here, the defendant is charged with the substantive crime. The consequence of
the lower court’s failure to order whether the sentences on the two counts
should run concurrently or consecutively is the other defendants are serving a
total term of twelve years imprisonment. That is an understandable where the
defendants should not have been charged with the conspiracy in the first place.
Moreover, the conspiracy and robbery were part of the same transaction. The
lower, should, as the Supreme Court of Appeal held in Kumwenda v Republic [1993] 16 (1) M.L.R 233, have ordered the
sentences to run consecutively. I, therefore, order the sentences against the
other defendants to run concurrently.
Made
in open court this 26th Day of May 2003
D F Mwaungulu
JUDGE