IN THE HIGH COURT OF
PRINCIPAL
REGISTRY
Criminal Appeal Number
33 of 2002
Between
WILLIAM SAMANYIKA
And
THE REPUBLIC
In
the Second
CORAM: D F MWAUNGULU
(JUDGE)
Dokali, Legal
Advocate, for the appellant
Mwenelupembe, Deputy
Chief State Advocate, for the respondent
Nthole,
Mwaungulu,
J
JUDGEMENT
William Samanyika
appeals from the judgment of the Zomba Second Grade Magistrate. The Zomba Second
Grade Magistrate Convicted the appellant of unlawful wounding. Unlawful
wounding is an offence under section 241 (A) of the Penal Code. The magistrate
sentenced the defendant to one-and-a-half years’ imprisonment. William
Samanyika, unrepresented in the court below, now appeals through counsel
against the conviction and the sentence.
Mr. Dokali, appearing
for the appellant, raises four matters: the magistrate erred in concluding the
appellant committed the offence; the magistrate erred in disregarding the
enormous doubt created by the evidence; the prosecution, on the evidence before
the lower court, failed to prove the case beyond reasonable doubt; and, the
sentence had no legal basis and was manifestly excessive. Mr. Mwenelupembe, the
Deputy Chief State Advocate, does not support the conviction.
On the evidence in the
lower court, Mr. Dokali and Mr. Mwenelupembe are right. We now know that a man injured the
complainant in the night when the complainant was policing his maize garden.
This man wounded the complainant to rescue a lady the complainant arrested with
a bag of maize. The lady dropped a wallet and a piece of cloth. The owner of
the wallet up to the time of the trial remained unknown. The prosecution called
a witness who identified the cloth as the appellant’s wife’s.
This witness’ identification of the cloth was, by all descriptions, inapt and
precarious. She did not describe the cloth in any way. In this Court I am
unsure about the nature of the cloth or the basis of this witness’ recognition
of the cloth. On this description the lower court thought this woman’s husband
was with this woman, assuming, of course, this woman was the appellant’s wife.
The lower court convicted the appellant because, thinking that the cloth
belonged to the appellant’s wife, he was the one with the woman at the time of
the offence.
There was no direct
evidence connecting the appellant with the crime. The state sought to prove
facts on which the lower court could infer the appellant’s guilt. Where there
is direct evidence, evidence of a witness’ experiences with the senses,
subject, of course, to credibility, a court will accept it as proof of a
person’s guilt. Often the prosecution establishes guilt by circumstantial
evidence: the prosecution proves other facts from which the court must infer
guilt. The force in proving guilt
attaching to both species of evidence is the same.
Concerning
circumstantial evidence, the burden of proof operates at two levels important
for proof of guilt. First, the prosecution must establish beyond reasonable
doubt the facts for the court’s inference of guilt. Consequently, the
prosecution fails to discharge the burden always on it to prove guilt beyond
reasonable doubt by not proving beyond reasonable doubt facts it wants the
court to infer guilt. On the other hand, although established to requisite
standard, proven facts may be insufficient to establish guilt beyond reasonable
doubt. The Supreme Court of Appeal in Jailosi
v Republic (1966-68) ALR (Mal) 494 stated that each link in the chain of
evidence must be unassailable and the cumulative effect must be inconsistent
with any rational conclusion other than guilt. In Nyamizinga v Republic (1971-72) ALR (Mal) 258 this Court held that
the prosecution must establish beyond reasonable doubt that guilt is the only
inference. In Director of Public
Prosecutions v Kilbourne [1973] AC 729 at 758, Lord Simon said
circumstantial evidence ‘works by cumulatively, in geometric progression,
eliminating other possibilities. There must, in the words of Pollock, CB., in Exall (1866)
4 F & F 922:
“… be a combination of circumstances,
no one of which would raise a reasonable conviction, or more than a mere
suspicion, taken together, may create a strong conclusion of guilt, that is,
with as much certainty as human affairs can require or admit.”
The prosecution must establish beyond a
reasonable doubt all facts on which the court must infer guilt; the
circumstantial evidence must establish guilt beyond a reasonable doubt.
Applying
these principles to the present matter, the prosecution did not establish
beyond reasonable doubt that the cloth belonged to the appellant’s wife. In Guza v Republic (1961-63) 2 ALR (Mal) 136 this Court held
that where good are mass-produced and in common use, simple recognition without
detailed identification is insufficient. We do not have any description of the
property in terms of us knowing whether it was clothed with uniqueness which
justified the witness’ inference it belonged to the appellant’s wife. Equally,
we do not have any details of the witness’ identification of the cloth. These
aspects are sufficient to cast doubt on proof of a fact on which the
prosecution wanted the lower court to infer guilt. Even if the cloth belonged
to the appellant’s wife, it is extremely dangerous to think that only a husband
can accompany a married woman to a crime.
This
appeal must succeed for reasons expressed and grounds counsel raised for the
appellant and the Deputy Chief State Advocate accepts.
Made in open court
this 3rd of October 2002
DF MWAUNGULU
JUDGE