IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CONFIRMATION CASE NO. 567 OF 1996
THE REPUBLIC
- versus -
DAVIE NDINDO
From the Second Grade
Magistrate's Court at Blantyre:
Criminal Case No. 4 of 1996
CORAM : Mwaungulu, J.
Manyungwa,
Principal State Advocate for the
State
Chilunga, Official
Interpreter
Mangisoni,
Recording Officer
JUDGEMENT
The Judge who
reviewed this matter set it down to regularise the charges. After looking at the record I notice that
there was no confusion on the charges.
On review, therefore, I also had to consider the severity of the
sentence.
On the 21st of
January 1996 the defendant appeared before the Senior Resident Magistrate at
Blantyre on a charge containing two counts: burglary and the related offence of
theft contrary to sections 309 and 278 respectively. The defendant wanted to plead guilty to the charge. What he said on the plea is important
because much of the ado in this matter has been caused by lack of appreciation
by the court below of its powers.
On the count of
burglary, the one that has caused the problems here, the defendant said: "I understand the charge and I accept
it. I entered the building. However it is not a dwelling house as people
never used to sleep in this house. It
was merely a storeroom and not a dwelling house." On the other count, the defendant accepted
stealing some of the items and not all contained in the event. Both responses to the charges were equivocal
pleas. The Court could only accept an
unequivocal plea of guilty. (Republic
-v- Benito (1978-80) 9 M.L.R. 21)
The court entered a plea of not guilty to both charges. The court could properly do that. This was not the only power available to the
court however. The other alternative
would have avoided the problems which arose in the matter.
On the burglary
charges it was quite clear that the defendant wanted to plead guilty to an
offence other than the offence with which he was charged. He wanted to plead guilty to a charge of
breacking into a building and committing a crime therein contrary to sectuib
311 of the Penal Code. The court should
at that stage have considered alteration of the charge to allow the defendant
to plead guilty to the altered charge.
Section 151 of the Criminal Procedure and Evidence Code provides:
"Where at any
stage of the trial before the court complies with section 254, or calls on the
accused for his defence under section 313, as the case may be, it appears to
the court .... that the accused desires to plead guilty to an offence other
than the offence with which he is charged, the court may make such order for
the alteration of the charge, either by way of amendment of the charge or by
the substitution or addition of the new charge as it thinks necessary to make
in the circumstances of the case, unless having regard to the merit of the
case, such amendments cannot be made without injustice."
The opportunity
arose again after the complainant had given her evidence. She told the court that the building was
just a storeroom. It was a separate
building. It was not obviously used as
a dwelling. A "dwelling
house" is defined in section 4 of the Code.
The evidence disclosed in no
uncertain terms an offence other than the one with which the defendant was
charged, namely breaking into a building and committing an offence therein
contrary to section 311 of the Penal Code.
The Court could have altered the charge for this reason and at this
stage. Whenever, at any stage of the
proceedings before the close of the prosecution case and before a Magistrate
has ruled that there is a case to answer the defendant intends to plead guilty
to an offence other than the one charged or the evidence discloses an offence
different from the one charged the court should consider altering the charge
unless there is likelihood of prejudice to the defendant or the prosecution.
There were problems
later when the prosecution could not produce other witnesses. This was because the charge had not been
altered as suggested. The prosecution
applied to discharge the defendant under section 81 of the Criminal Procedure
and Evidence Code. The Court withheld
that consent and properly in my view.
The reasoning of the court below, with which I agree entirely, was that
since the defendant seemed to concede commissions of some offence it would have
been prejudicial to the defendant to
discharge the defendant. Section 81 (a)
of the Criminal Procedure and Evidence Code provides as follows:
If the court had
consented to the prosecutions application it would not have amounted to an
acquittal. It was still open to the
prosecutor at some later stage to commence the proceedings if the witnesses
were found. This would be unjust to the
defendant for two reasons. He would
have been at the mercy of the prosecution when he really wanted to plead guilty
to a different offence. Moreover his
punishment would have been deferred for certainly he risked conviction at some
later stage. The consent of the Court
was in my judgment properly withheld.
The Court, as I
said earlier, could have amended the charge under section 151 of the Criminal
Procedure and Evidence Code. The Court
did not. Consequently the Prosecutor
introduced a new charge which took care of the concerns that had been raised by
the defendant, the evidence and the prosecutor. At the end of the
day the result was the
same. This, however, was a decision
which should have been made by the court at an earlier stage. It would have saved time and cost. On the altered charge the defendant was
convicted of the offence of breaking into a building and committing an offence
therein contrary to section 311 of the Penal Code.
The sentence of two
and half years imprisonment with hard labour that the court below imposed on
the offence as charged is manifestly excessive. The defendant just forced the door open. There was no damage to the property upon
entry. There was no violence to
anyone. Nobody was around during the
commission of the offence. This was a
simple case of breaking and entering.
The property stolen was not considerable in monetary terms, K1,192, but
no doubt of considerable value to a woman of the complainant's station in
life. The sentence to be passed for
committing this offence must depend, apart from the other usual consideration,
where the felony is theft, on the nature of the breaking and entry and the
amount of property stolen. In this
particular case on these considerations the offence was not one that merited
the sentence passed.
A court has no
jurisdiction to pass sentence on an offence that has been withdrawn from it by
the prosecution. The court below did
not check the new charge that had been brought by the prosecution to replace
the earlier charge. The earlier charge
premised as it was on burglary naturally had a separate count of theft. The court below, however, without checking
the new charge, made the defendant plead to the count of theft which was not in
the new charge and proceeded to sentence the defendant on it. It had no jurisdiction to sentence the
defendant on the charge that had been withdrawn. Where a lesser offence is a constituent part of another offence
the court cannot sentence the defendant on both offences. It should have been apparent to the court
below that section 311 of the Penal Code includes, in this case, the
theft. it could not sentence the defendant
on the offence under section 311 and for theft.