IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Criminal Case Number 144 of 2003
THE REPUBLIC
Versus
SHABIR SULEMAN
And
ASLAM OSMAN
CORAM: D F MWAUNGULU (JUDGE)
Kaliwo, Legal Practitioner, for the State
Kanyenda, State Advocate, for the State
Dokali, Legal Practitioner, for the second defendant
Kaphale, Legal Practitioner, for the second defendant
Kamanga, the official court interpreter
Katemana, court reporter,
Mwaungulu, J.
ORDER
In
this matter, the defendants, Shabir Sulemani (the first defendant) and Shabir
Sulemani and Aslam Osman (the second defendant) submit that there is no case to
answer on charges against them under the Corrupt Practices Act. The State
charged the defendants with the offence of corrupt practices with a public
officer. Corrupt practices with a public officer is an offence under section 24
(2) of the Corrupt Practices Act. Mr. Suleman answers three counts. On the
first count the State alleges Mr. Suleman between the 1st June and
31st December 2002 here in Blantyre corruptly offered to his Honour
Mr. Justice Maxon Mkandawire gratification in the form of very low rent as an
inducement for the Honourable Mr. Justice Mkandawire to rule in Mr. Suleman’s
favour a case which the said Justice Maxon Mkandawire was presiding. On second
count, concerning the same matter before the Honourable Mr. Justice Maxon
Mkandawire, the State alleges that in around November 2002 Mr. Suleman
corruptly promised to give the Honourable Mr. Justice Maxon Mkandawire
gratification in the form of a poultry division of I Conforzi Limited valued at
over US$ 500, 000 (Five thousand United States dollars) as an inducement for
the Honourable Mr. Justice Maxon Mkandawire to rule in favour of Mr. Osman. In
the third count the State charges Mr. Suleman, in conjunction with Mr. Osman,
between 1st June and 31st December 2002, again concerning
the same case, at Greenland Feed in Limbe, for corruptly offering gratification
amounting to K1, 000, 000 for the Honourable Mr. Justice Maxon Mkandawire to
rule in Mr. Osman’s favour. The second defendant, therefore, only answers the
third count where the State alleges he worked in conjunction with Mr. Osman.
Legal Practitioners from both sides argued eruditely on the practice and
procedure on the defendant’s submission, in a criminal case, of course, of no
case to answer, arguments, I must confess, I found extremely helpful in
resolving whether or not to uphold the defendants’ submission in this Court.
The
common law recognised, in civil or criminal proceedings, the defendant’s right,
at any stage of the proceedings, to submit there was no case for her to answer.
Section 254 (1) of the Criminal Procedure and Evidence Code, however, creates,
in relation to Magistrate Courts, a duty on the Court to determine in every
case whether there is a case to answer before the defendant enters defence:
“If, upon taking all the evidence referred to in
section 253 and any evidence which the court may decide to call at that stage
of the trial under section 201, the court is of opinion that no case is made
out against the accused sufficiently to required him to make a defence, the
court shall deliver a judgment in the manner provided for in sections 139 and
140 acquitting the accused.”
Section 254 (2) creates quite
some wide powers, including amendment or substitution, where evidence points to
some other crime:
“If, when the evidence referred to in subsection (1)
has been taken, the court is of the opinion that a case is made out against the
accused sufficiently to require him to make a defence in respect of the offence
charged or some other offence which such court is competent to try and in its
opinion it ought to try, it shall consider the charge recorded against the
accused and decide whether it is sufficient and, if necessary, shall amend the
same, subject to section 151.”
The section only creates a duty
for the court to so determine. The section does not remove the defendant’s
right to submit at any stage that in fact and in law there is no case to
answer. There are two possible scenarios. First, the court, without the
defendant submitting, has under section 254 (1) of the Criminal Procedure and
Evidence Code, to consider the matter. The defendant can address the court as it
considers the question. This might be the prudent thing rather than letting the
court determine the question without the defendant submitting. Nothing in law
or principle, however, prevents the defendant making the submission, without
appealing, after the courts determination of the question. Secondly, the
defendant may so submit before the court considers the question. The court
would be duty bound to consider the question. Section 254 (1) therefore only
creates a duty for the court to determine the question. The section does not
affect the defendant’s right to submit to the court that there is no case to
answer against her.
The
Criminal Procedure and Evidence Code, in relation to the High Court, creates no
such duty for trials in the High Court save, of course, in the circumstances
obtaining in this case, where under section 294 the Minister declares that the
particular case or certain class of cases be tried without a jury. The Criminal
Procedure and Evidence Code does not, however, remove the common law right for
a defendant in the High Court to submit that there is no case to answer. Mr.
Banda, SC, correctly in my judgment, asked this Court to proceed as under Part
VII of the Criminal Procedure and Evidence Code, providing for procedure in
magistrate courts, precisely, I suppose, because in the part prescribing
procedure in this Court, Part X, there is no equivalent section 254. Previous
legislation provided for such a course of action in the High Court. This
situation leads many to think that there can be no submission of any case to
answer in the High Court. Other theories reinforce this position. First, that
proceedings in the High Court are normally preceded by a preliminary enquiry
under Parts VIII and IX that settle the question. This thesis is untenable
under Part IX where the decision is the Director of Public Prosecution’s. More
importantly, more clear words are needed to remove a common law principle and
right. The second bases on the reading of section 313 of the Criminal Procedure
and Evidence Code:
“When the case for the prosecution is closed and upon
hearing any evidence which the High Court may decide to call at that stage of
the trial under section 201 the High Court shall forthwith call on the accused
to enter upon his defence.”
On this aspect, the conclusion
premises on that the Criminal procedure and Evidence Code, unlike its
predecessor Criminal Procedure Code, omitted the matter all together and that
the wording in section 313 and 254 (1) is the same except for the duty it
creates for magistrate courts.
In my judgment
the Criminal Procedure Code, on this aspect, was a codifying statute, codifying
the common law right. Its repeal had no effect on the common law right on a
submission of no case to answer. Moreover the wording of section 313 is
inadequate, in my judgment, to displace a common law right or principle. No
doubt under our Constitution and at common law statues rank higher in validity.
It is a principle of Common law and statutory interpretation that Parliament
must use clear words to affect the common law. The omission of the duty in
section 313 seen in section 254 (1) only relates to the duty of the court to
consider the question. Neither section 254 (1) nor section 313 expressly or
implicitly affect a defendant’s right to submit to the court in criminal
proceedings that there is no case to answer against her. Even if there was no
such power, the High Court, under section 11 (b) of the Courts Act, without
prejudice to any jurisdiction conferred on it by any other written law, shall
have all jurisdiction and powers, civil or criminal, which belong and are
exercisable by any subordinate court.
This includes the power exercised by subordinate courts under section
254 (1) of the Criminal Procedure and Evidence Code. The High Court can
therefore entertain a submission of no case to answer if made to it and has,
where the Minister directs for a trial without a jury, to proceed under section
254 (1) of the Criminal Procedure and Evidence Code.
Many decisions
cited by
“This section provides that if at the close of the
evidence in support of the charge it appears to the court that a case is not
made out against the accused person sufficiently to require him to make a
defence, the court shall dismiss the case and shall forthwith acquit him.”
In a case like the present the
Lord Chief Justices advice for time for circumspection in Harold v R (1923-61) 1 ALR (Mal) 538 at 541 is important:
“If a magistrate has followed the evidence for the prosecution,
as he should, with any eye to the charge and has noted, as the case proceeds,
which of the various elements which go to make up the charge have been proved,
he will, in straightforward case, have no difficulty in deciding at the close of
the case whether or not such a case has been made out as would justify
proceeding under s.204. Except in the
clearest of cases, however, he should always pause for a moment at that stage
and consider whether the case falls under s.203 or under s.204. Indeed, in a case of real difficulty he would
do well to adjourn for a short time at the conclusion of the prosecution case
in order to satisfy himself that the accused person really has a case to meet
and will not be called upon on the chance that he will convict himself .”
In
principle this court, as Republic v
Dzaipa [1975-77] MLR 307; and Mphande
v Republic Cr. App.Cas. No. 46 of 1996, unreported, show, is guided by the Practice Direction (Submission of no Case) issued
by Lord Parker, CJ [1962] 1 WLR at 227:
“A submission that there is no case to answer may
properly be made and upheld (a) when there has been no evidence to prove an
essential element in the alleged offence, (b) when the evidence adduced by the
prosecution has been so discredited as a result of cross examination or is so
manifestly unreliable that no reasonable tribunal could safely convict on it.
Apart from there two situation a tribunal should not
in general be called upon to reach a decision as to conviction or acquittal
until the whole of the evidence which either side wishes to tender has been
placed before it, If, however a
submission is made that there is no case to answer, the decision should depend
not so much on whether the adjudicating tribunal (if compelled to do so) would
at that state convict or acquit but whether the evidence is such that a
reasonable tribunal might convict if a reasonable tribunal might convict, if a
reasonable tribunal might convict on the evidence so for laid before it, there
is a case to answer.”
Mr.
“This court has repeatedly said in recent years that
this practice should not be followed. If
a judge thinks that the case is tenuous, then, even though there is some
evidence against the accused person, the judge, if he thinks it would be unsafe
or unsatisfactory to allow the case to go to the jury even with a proper
direction, should take upon himself the responsibility of stopping it there and
then. If the judge is not prepared to
stop the case on his own responsibility, it is wrong for him to try and cast
the responsibility of stopping it on to the jury.”
The decision
stresses the duty and responsibility of a trial judge faced with such
submission or acting under the duty in section 254 (1) of the Criminal
Procedure and Evidence Code. The leading
case, however, in the
“How then should the judge approach a submission of
‘no case’? (1) If there is no evidence
that the crime alleged that has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some
evidence but it is of a tenuous character, for example because of inherent
weakness or vagueness or because it is inconsistent with other evidence. (a)
Where the judge comes to the conclusion that the prosecution evidence, taken at
its highest, is such that a jury properly directed could not properly convict
upon it, it is his duty, upon a submission being made, to stop the case. (b)
Where however the prosecution evidence is such that its strength or weakness
depends on the view to be taken of a witness’s reliability, or other manners
which are generally speaking within the province of the jury and where on one
possible view of the facts there is evidence upon which a jury could properly
come to the conclusion that the defendant is guilty, then the judge should
allow the matter to be tried by the jury.
There will of course, as always in this branch of the law, be borderline
cases. They can safely be left to the
discretion of the judge. ”
The later case of
Shippey v R [1988] Cr. L.R. 767
illustrates the situation where the evidence was so tenuous in the words of the
Lord Chief Justice in Galbraith v R.
That the court could adjourn to
consider the question underscores the deliberative and determinative nature of
the process. The deliberativeness premises on that section 254 (1) of the
Criminal Procedure and Evidence Code and the common law require a case
sufficiently to require the defendant to make a defence. Every case will not
suffice; it must be such a case that sufficiently requires her to make a
defence. The determinative nature of the process premises on that, if there is
no such case, the defendant must be acquitted at that stage and prevented from self
incrimination.
In practice all decisions on this point, including ones the legal
practitioners cited, point to availability, quantity and quality of evidence
sufficient to require the defendant to make a defence. The available evidence,
its quantity and quality, in turn depend on the facts in issue to prove the
offence. Evidence must be available to establish all the facts in issue for the
crime. The available evidence must be such that, without rebuttal, a reasonable
tribunal could convict. This is what Practice
Direction (Submission of no Case) [1962] 1 W.L.R. 227 suggests. A court,
therefore, faced with the duty, whether under section 254 (1) of the Criminal
Procedure and Evidence Code or at common law, to decide whether a defendant in
criminal proceedings has a case sufficiently to require her to make a defence
must decide concerning the particular offence (a) whether there is evidence and
(b) whether that evidence establishes a case sufficient for the defendant to
make a defence. The answer to (a) depends on the nature of the offence. There
is no case sufficiently to require the defendant to make a defence where there
is no evidence to prove that the defendant’s acts accounted for one element or
all elements of the offence. The answer to (b) goes to the quality of evidence
available to the court in (a). The answer turns on whether the available
evidence is such that without more a reasonable tribunal would convict. At the
close of the prosecution case, unless the court acts under section 201 of the
Criminal Procedure and Evidence Code, only the prosecution evidence is
available to the court. Consequently, only such evidence shorn of debilitating
contradictions and inconsistencies or survives cross-examination raises a case
sufficient to require the defendant to enter a defence. Evidence with mortal
inconsistencies or contradictions or undermined by cross-examination does not
raise a case sufficiently requiring a defendant to make a defence.
Availability:
is there evidence that the defendants committed the crime?
This, as seen,
depends on the nature of the offence. The offence determines the elements of
the offence and, consequently, the facts in issue the prosecution must
establish. Section 24 (2) of the Corrupt Practices Act, creating the offence of
corrupt practices with a public officer, provides:
“Any person who by himself, or by or in conjunction
with any other person, corruptly gives, promises or offers any gratification to
any public officer, whether for the benefit of that public officer or of any
other public officer, as inducement or reward for doing or for bearing to do
anything in relation to any matter or transaction, actual or proposed, with
which any public body is or may be concerned shall be guilty of an offence.”
The elements of this offence are
(a) a person by herself or through another must (b) corruptly (c) (i) give,
(ii) promise or (iii) or offer gratification (d) as an inducement for the
public officer to do or forbear to do something. The Corrupt Practices Act defines
‘corruptly’: “in relation to the soliciting, accepting or obtaining, or to the
giving, promising or offering, of a gratification, means the doing of any of
the aforementioned things by way of a bribe or other personal temptation,
enticement or inducement.” The Corrupt Practices Act defines ‘gratification’:
“means any payment, whether in cash or in kind, and includes any rebate, bonus,
deduction or percentage, discount, commission, service, forbearance,
assistance, protection or any other material gain, benefit, amenity, facility,
concession or favour of any description, and any fee, reward, advantage or
gift, other than a casual gift.”
The charge
indicates the facts in issue. On the first count the State alleges Mr. Suleman
between the 1st June and 31st December 2002 here in
Blantyre corruptly offered to his Honour Mr. Justice Maxon Mkandawire
gratification in the form of very low rent as an inducement for the Honourable
Mr. Justice Mkandawire to rule in Mr. Suleman’s favour a case which the said
Justice Maxon Mkandawire was presiding. On the second count, concerning the
same matter before the Honourable Mr. Justice Maxon Mkandawire, the State
alleges that in around November 2002 Mr. Suleman corruptly promised to give Mr.
Justice Maxon Mkandawire gratification in the form of a poultry division of I
Conforzi Limited valued at over US$ 500, 000 (Five thousand United States
dollars) as an inducement for the Honourable Mr. Justice Maxon Mkandawire to
rule in favour of Mr. Suleman. In the third count the State charges Mr. Suleman
for, in conjunction with Mr. Aslam Osman, between 1st June and 31st
December 2002, again concerning the same case, at Greenland Feed in Limbe for
corruptly offering gratification amounting to K1, 000, 000 for the Honourable
Mr. Justice Maxon Mkandawire to rule in Mr. Suleman’s favour. This Court must
at this stage decide whether there is evidence to cover all the elements of the
offence and the facts in issue.
At this stage of
enquiry the concern is whether there is material (evidence) to cover the
elements of the offence and facts in issue. Forensic experts state that
evidence is brute facts. As facts, evidence can be itemized, classified or
credited. The evidence here is oral: it is the word of the Honourable Mr. Justice
Mkandawire in the main and the testimony of other prosecution witnesses. We
consider the quality of this evidence later. As for now there is material
(evidence) to establish the prosecution theory that, to influence the
Honourable Mr. Justice Mkandawire in a decision involving the first defendant,
the two defendants offered gratification.
The prosecution
evidence, apart from The Honourable Mr. justice Mkandawire’s evidence, so far
establishes the following background to the alleged crime. The first defendant
is an official in Ismail Properties, a property company that let property to
Gurmair Garments Ltd. Gurmair Garments Ltd was in deep financial trouble. Winding
up was eminent. Gurmair Garments Ltd was in large arrears of rent. Ismail
Properties distressed for rent, some K5, 000, 000. The property was sold. Ismail
Properties received cash. Gurmair Garments Ltd’s liquidator challenged the
distress for rent before Mr. Justice Maxon Mkandawire. The effect of Gurmair
Garments Ltd’s challenge before the Honourable Mr. Justice Mkandawire, if
successful, was that Ismail Properties would surrender the K5, 000, 000 to the
Liquidator. Of course, the action before the Honourable Mr. Justice Mkandawire,
due to various procedural and practical difficulties, took long. Consequently,
one sees clearly why, if this is of any assistance at all, why the Honourable
Justice Mkandawire’s decision concerned the first defendant.
The Honourable
Mr. Justice Mkandawire’s testimony, apart from the inconsistencies we see later,
establishes three episodes significant to this case. I will refer to these
episodes as the ‘low rent’, the ‘I Conforzi poultry farm’ and the ‘
There was fierce
cross-examination on this evidence chiefly to show, at one stage, that the
judge went all the way to ask for the bribe, that the judge took too long to
report the crime, that the events never and could not have taken place. There
was also a partly successful attempt to show lapses in the judge’s recollection
of events. On all questions put to the judge, he denied the suggestions and
proffered evidence to show that the events occurred as he informed the court.
Certainly the cross-examination was to put to the witness the defence cases, if
we ever come to that. The cross-examination was certainly also intended to
undermine the judge’s testimony. On either front, the judge’s answers, all,
subject to credibility, not yielding to the defences’ suggestions, are all the
material we have on the matters the defence raised.
There is, in my
judgment, material to support the elements of the offence of corrupt practices
with a public officer and the facts in issue in the particulars of the offence.
The evidence shows clearly that the defendants did not give a bribe, a point
emphasized by
Does the evidence establish a
case sufficiently to require the defendants to make a defence?
Where
evidence establishes all elements of the offence and facts in issue a court
should require the defendant to make a defence unless the evidence is so
unreliable in itself or is undermined by cross-examination as makes it unsafe
for a reasonable tribunal to convict. In relation to the low rent, and indeed
on all episodes, the defendants’ legal practitioners sought to downplay the
judge’s evidence for forgetfulness. Admittedly, the judge forgot some detail
relative to time and sequence. He was, however, never wanting as to the events
and the people involved. He spoke clearly of the meeting at the farm with the
first defendant on the offer for low rent, subsequent visits to the premises
and the Limbe tours where there was another shop. As the judge understood it
and narrated it in court, the first defendant was offering lower rent to him.
For purposes of the crime for which the first defendant answers it suffices if
the offer was a reduction or forbearance of a benefit. It is unnecessary for
the public officer to know the level of the reduction. It was suggested that
lack of any suggested figure undermines the testimony. It does not, in my
judgment. The judge said, and it could be that that is why the amount never
arose, he was not very interested in the idea. There was also a suggestion that
there was a contradiction between the judge and his servant as to whether
poultry died at the farm. There was also suggestion that there was a
contradiction as to whether the visitor went directly to the judge. These contradictions
were irrelevant to the fact in issue. The servant was absent when the first
defendant allegedly discussed the offer for lower rent with the judge. There
was no contradiction on this relevant issue. All, unless contradicted, shows
the judge met the first defendant at the farm and the alleged conversation
occurred. The first defendant, according to the judge, offered lower rent. At
that time the judge thought it was just an offer. Only later did he connect
this event to the subsequent one.
The
first defendant’s submission on the I Conforzi Ltd episode is a little bit
unclear to me. In one breath the defendant submits the episode could not have
occurred at that kind of place. There were many people, it is said. The first
defendant, it is said, could not have done such a grave thing at
In another
breath, the defendant submits that the first defendant could have chosen a more
convenient venue. After all, it is said, the first defendant could have made
this offer at other places where only the first defendant and the judge were
present. It is clear that on all the occasions where only the judge and the
first defendant were present, on the judge’s evidence, not contradicted at the
moment, the first defendant was pursuing unsuccessfully the offer of the shop
at Ginnery corner. At those moments, on the evidence, it had not occurred to
the first defendant to offer I Conforzi Ltd. The first defendant could have
been calculating when to attack.
What is curious
though is how the judge, unless, the first defendant advertised the shops,
would know about the shops. The judge never suggests reading an advertisement.
The judge says that he came to know of the shops at the BAT offices when the
first defendant approached him at the farm. The advertisement theory can be
true probably for property at BAT premises. Ismail Properties dealt in
property. Ismail Properties cannot advertise when buying property. How would
the judge know that the first defendant was buying I Conforzi Ltd.? It was
suggested in argument that it is absurd that the first defendant could offer
property that expensive, some US$ 500, 000, for rent valued at US$ 50, 000. It
is equally absurd, I should think, that the judge would know the first
defendant was buying such a property. In any case, it is possible the first
defendant never knew at the time of the offer to the judge the actual price of
I Conforzi Ltd. It appears there were bids at the time. The deal concluded many
months after the offer to the judge.
The only way the
judge would know the first defendant was buying I Conforzi Ltd was if he knew
the defendant very well. The judge is adamant he met the defendant for the
first time at the farm. Unlike with the second defendant, whose case I consider
in a moment, there is no evidence of past dealings until this episode. The
judge conceded that the first defendant could have come to his court several
times. He could not recognise the first defendant. There was evidence that the
first defendant appeared in chambers once or twice. It is another thing to
suggest that because the first defendant had been before the judge once or
twice the judge would know him when it is clear that the first defendant never
testified, his evidence before the judge having only have been by affidavit. It
matters less at this point that the judge knew the first defendant. It is not unusual
in the affairs of men that crimes, particularly like the present, are committed
in the circle of friends and relations by consanguinity or affinity. Such
relationships provide an opportunity for committing crimes. Such relationships
do not exclude commission of crimes. In a case like the present such
relationships may be the only reason for the crime. This, on the evidence of
the judge, may be the only reason the second defendant found himself in the
crime in the third count.
The judge told
the court that he only went to the second defendant’s shop to look for feed.
Albeit the judge made his own feed, there were times when he bought from other
producers like the second defendant. Several years back when the judge was not
manufacturing feed, he maintained an account with the second defendant. For
much of the time the judge’s account had extra funds to meet his needs. Once or
twice the account had no funds and two cheques were dishonoured. The judge
previously borrowed a book from the second defendant. The judge and the second
defendant knew each other for some time. The judge informed the court that on
the day in question when he went to the second defendant’s shop, the second
defendant informed him that the first defendant was offering the judge the sum
of K1, 000, 000 for deciding in the first defendant’s favour. In
cross-examination the judge rejected the suggestion to him that on that date he
was found in felo delicto requesting
the second defendant’s servant for chicken feed secrets. What we have on the
record is that the second defendant offered the K1, 000, 000 in the
circumstances and the reasons stated by the judge. The record also shows a
rejection of the suggestion. The cross-examination did not change much of the
judge’s evidence on the material facts. Unless contradicted these are the brute
facts on the record.
Of course, as a
matter of course one would think the second defendant’s inclusion of the first
defendant in the statement to the judge would not hold against the first
defendant. The second defendant’s statement at that point was not a confession.
The evidence suggests a conspiracy. This Court deprecates inclusion of a conspiracy
where the prosecution charges the defendant for the substantive crime: see Mvundula v Rep. [1978-80] MLR 320. In a
conspiracy, the statement of a party to the agreement in the course of the
crime is admissible against the other: Nguwo and another v Rep. [1991] MLR 384.
Of course there
is much to say about the sequence of events. Much of what occurred in the
course of the judge’s testimony is a matter of impression. At one level the
judge could not remember much of detail. Unless you are part of the crime, most
crimes occur in the flimsiest of circumstances allowing very little time for
registering detail. After the crime, immediately or later, victims of crime
have to think backwards to recollect from memory what actually happened and
reconstruct events. That is not easy. The adversarial system with its precision
of examination in chief, the incisiveness of cross-examination and opportunity
of re-examination helps to jog the memories of witnesses and bring out truth
essential to justice. In this respect, the judge was the key witness for the
prosecution and to the defence. Indeed he was subjected to rigorous
cross-examination by three legal practitioners in turn. That rigorous
cross-examination resulted in the judge slipping on the sequence of events.
That slip was, on the face of it, mollified, as it should be, by
re-examination. The judge stuck to one sequence of events. The defence suggests
that this slip should affect the whole testimony to undermine it or discredit
it. On this aspect I am aware of the statement of Davies, J., in Parojcic v Parojcic [1959] 1 All ER 1 at
5 – 6, cited with approval in this Court
in Mahomed Nasim Sirdar v Rep. (1968-70)
5 ALR (Mal) 212 at 218:
“It would not, I think, be right to approach it from
the point of view that as she and her witnesses have lied about one thing, the
remainder of their evidence must be equally unreliable. It is not unknown for people, particularly
simple and uneducated people such as these are said to be, to fall into the
error of lying in order to improve an already good case.”
Recollecting the sequence of
events of course adds much to the credibility to the evidence of a witness. It
is another thing to suggest that in all cases where there is no recollection or
an error the events never occurred. In the affairs of men there can be frailty
of memory on the particular event or their sequence. At the end of the day, it
is a matter of impression for the tribunal of fact. There are cases, and the
present is not one, where the consequences of non-recollection may be
detrimental and go to the root of the testimony. The judge, as I mentioned,
bettered up the slip in cross-examination in re-examination. The judge was very
clear on the events themselves and places where they occurred and not very sure
about the sequence and dates.
The
defence submits that the judge’s lack of recollection as to dates and time are
fatal to the prosecution case. From the legal perspective the dates when the
offence was committed, depending on the nature of the defence, are not
essential to conviction of a crime. If the law was otherwise, in some cases on
admission, for purposes of conversation, the court would not convict because there
was no stipulation of time. The law allows the prosecution to stipulate the
times as was done here. The court will convict where the offence was clearly
proved albeit it occurred at a different time. This Court considered this
aspect in Rep. v Tenghai conf. cas.
No. 558 of 1994, unreported. It approved
Lord Atkins’ statement in R v Dossi (1919)
13 Cr.App.R. 158:
“From time immemorial a date specified in an
indictment has never been a material matter unless it is actually an essential
part of the alleged offence…. Thus though the date of the offence should be
alleged in the indictment, it has never been necessary that it should be laid
according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were
entitled, if there was evidence on which they could come to that conclusion, to
find the appellant guilty of the offence charged against him, even though they
found that it had not been committed on the actual date specified in the
indictment.”
Finally,
the defence derided the judge’s delay to report the crime to the
Anti-Corruption Bureau when the Corrupt Practices Act provides for that. The
Judge was obviously oblivious to the provision. The matter is not made any
worse for him because he is a judge.
Lord Atkins' remarks in Evans v
Bartlam [1937] 2 All ER 646 at 649 are appropriate:
“For my part, I am not prepared to accept the view
that there is in law any presumption that anyone, even a judge, knows all the
rules and orders of the Supreme Court.
The fact is that there is not, and never had been, a presumption that
everyone knows the law. There is the
rule that ignorance of the law does not excuse, a maxim of very different scope
and application.”
The defence therefore suggests
that a judge of considerable experience should have reported the matter
earlier. I agree that may be the judge should have reported the matter earlier.
It is quite another thing however to suggest that the crime was not committed
because the witness did not report promptly. There could be many reasons why a
victim or a witness cannot report earlier. Apart from credibility, which I
consider, in a moment, I know of no principle suggesting that where a crime is
proved to have been committed that the crime was not reported earlier should
have the consequences suggested.
The
defence therefore sought to test the matter on credibility. The suggestion is
that the judge’s tarrying in reporting the matter undermines the evidence. An
analogy is drawn between this matter and a complaint in sexual offences where
such a complaint is excluded. The analogy is unhelpful. There the rule operates
to exclude the complaint because it is not contemporaneous to the crime. A
complaint contemporaneous to the offence establishes consistence. Indeed the
Corrupt Practices Act requires prompt reporting. It does not suggest that
tardiness of reporting or lack of reporting undermine the crime. A tardy
reporter may himself be guilty of delay but the corruptor will face the law
despite the tardy report.
Conclusion
The
evidence before me raises a case sufficiently requiring the defendants to make
a defence. The evidence so far suggests the first defendant made several offers
to the judge presiding in a case where the first defendant had interest. In
that case, if the first defendant was unsuccessful, Ismail Properties would
surrender the cash already received as arrears of rent from Gurmair Garments
Ltd. Initially, the judge was unaware of the purposes of earlier overtures.
When he knew, he was dismissive of subsequent ones. The judge however was
disconcerted when the first defendant, frustrated by earlier overtures, used
the second defendant to persuade the judge. The judge recused himself from the
case. The evidence, in my judgment rises to the height where, without
explanation, a reasonable tribunal of fact would convict. The contradictions
were, in my judgment, mollified in re-examination. The judge however slipped on
some details. The slips do not undermine the rest of the evidence. The judge
was quite sure of the three distinct episodes the subject of the charges. On
the principles in Galbraith v R the
defendants ought to make a defence. Most of the defendants’ objections to the
testimony so far are, except in the rare case, not like the present, in Shippey v R, are ones, on the strength
of Galbraith v R, that do not, as
long as there is evidence on which the jury could go one way, justify the judge
to withdraw the matter from the jury. The
evidence covers the elements of the offence and the facts in issue. The
defendants should make a defence.
Under
section 254 (2) of the Criminal Procedure and Evidence Code I order, just
because legal practitioners for the second defendant submitted that there were
problems with the third count, amendment of the charge to reflect that the first and second defendant, as the
evidence shows, committed the crime. The
defendants should therefore make a defence.
Made in
D F Mwaungulu
JUDGE