IN THE MALAWI SUPREME COURT OF APPEAL
AT
BLANTYRE
MSCA CRIMINAL APPEAL NO. 10
OF 2000
(Being High Court Criminal Cause
No. 43 of 2000)
BETWEEN:
THOMSON
FULAYE
BOKHOBOKHO...................1ST
APPELLANT
- and -
LEWIS
LIVIEL
JONATHAN.................................2ND APPELLANT
-
and -
THE
REPUBLIC......................................................RESPONDENT
BEFORE: THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE
MTEGHA, JA
THE HONOURABLE JUSTICE MRS MSOSA, JA.
Kalemba, Counsel for
the 1st Appellant
T Chirwa, Counsel for
the 2nd Appellant
Annabel Phoya, Counsel
for the Respondent
Mbekwani (Mrs),
Official Interpreter/Recorder.
J U D
G M E N T
Mtegha, JA
The two appellants, jointly with three others, were charged in the High
Court sitting at Chiradzulu, with six counts of murder. They pleaded not guilty to the charges, and
after a full jury trial, the appellants were found guilty and they were
convicted. Of the three others, one
died while awaiting trial, the other was discharged and the third one was
acquitted. The appellants were sentenced
to the mandatory sentence of death.
They now appeal to this Court against both the convictions and
sentences.
Between January and
March 2000, six women were murdered in Chiradzulu District. The victims were Elube Tambala, Veronica
Joseph Chiwalo, Mary Muononga, Apuna Kashoti, Enelesi Njerero and Rose Chituta
Mataya, as reflected in counts 1 to 6 respectively. They were either strangled
or stabbed and had their bodies dismembered or interfered with. In some cases,
their private parts, breasts and intestines were removed, and in other cases,
the abdomens were opened and in some cases, the eyes were gorged out. It became quite clear to the Police that
they were dealing with serial or ritual killers. The Police embarked on extensive investigations and in April
2000, they arrested one, Evance Solomon alias SITENALA. After being questioned, Sitenala, who
subsequently died in custody while awaiting
trial, revealed that he perpetrated the murders with his friend
Bokhobokho, the 1st appellant.
Bokhobokho was arrested soon thereafter. They both gave caution statements to the Police, and in their
statements they admitted to have murdered the victims and further stated that
they were selling the human organs to Lewis Liviel Jonathan, the 2nd
appellant, and Samuel Chimwanza Ngole, who was the fourth accused at the trial,
and he was acquitted. In their
statements, they told the Police that they killed these women so that they
could get rich. When Police arrested
Jonathan, they searched his house, his rest house and his bottle store; but they found nothing. He himself denied to have been involved in
the murders and maintained his denial up to the trial.
There is no doubt that the victims were
murdered, and the only question which had to be determined by the lower Court
was who was responsible for these gruesome murders. During the trial, the prosecution relied on confession statements
and they tendered in evidence confession statements which were obtained from
the 1st appellant in respect of counts one, three, four and five,
but the prosecution did not tender any confession statements in respect of
counts two and six. In his confession
statement, the 1st appellant further stated that he sold the
intestines and other body parts from the victims to the 2 nd
appellant and to Ngole for various sums.
At the trial, the 1st appellant retracted his
confessions. The jury, nevertheless,
convicted him.
Ngole, as pointed out
earlier, was acquitted. During the
trial, the 2nd appellant denied through and through that he was
involved in these murders.
Nevertheless, he too was convicted.
Mr Kalemba, learned
Counsel for the 1st appellant, filed four grounds of appeal as
follows:
“1. The learned
lower court judge erred in law by not sufficiently directing the jury on the
law governing admissibility of confession statements in a criminal case.
2. The learned
lower court judge erred in law in directing the jury to disregard counsel’s comments
as evidence while addressing the jury in his submissions.
3. The learned
lower court judge erred in law by directing the jury that there was enough
circumstantial evidence to convict the appellant Thomson Fulaye Bokhobokho on
Counts 2 and 6.
4. In all
circumstances of the case the conviction of the Appellant Thomson Fulaye
Bokhobokho has occasioned a failure of Justice.”
Learned Counsel for
the 1st appellant, however, argued these grounds together. The thrust of his argument is that the bulk
of the evidence which was before the Court below, and upon which the lower
Court convicted the 1st appellant, consisted of confession
statements which were retracted at the trial because they were obtained after
the Police had beaten him. Counsel
further stated that the confession statements which were tendered in Court only
related to four women, namely, Elube Tambala, Mary Muononga, Apuna Kashoti and
Enelesi Njelero, but not Veronica Joseph Chiwalo and Rose Chituta Mataya, and
therefore, the 1st appellant could not be convicted on counts two
and six, because there was no evidence upon which the jury could convict if the
confession statements in respect of those counts were not tendered. He also argued that although retracted
confessions are admissible under s.176 of the Criminal Procedure and Evidence
Code (CP & EC), there was no corroboration or independent pointers in the
rest of the evidence to determine whether there is connection with the
statement to prove that the statements were materially true in respect of the
confessions relating to the four charges.
Learned Counsel for
the 1st appellant also argued that for the Court to convict on
circumstantial evidence, the evidence adduced before the court must be such
that it eliminates all reasonable hypothesis of the accused’s innocence. In the instant case, there is no
circumstantial evidence pointing to the guilt of the appellant, and the
appellant only. He cited to us the
cases of Rep. v Nalivata and Others (1971-72), 6 ALR (Mal.) 101, Chiphaka v
Rep. (1971-72), 6 ALR (Mal.) 214, CPP v Lucius Chikuni, MSCA Criminal Appeal
No. 23 of
1991 (unreported), Gladstone
Kambuwe v Republic, MSCA Criminal Appeal No. 8
of 1995 (unreported)
and Bokola v Republic (11 ALR (Mal.) 145 to support his arguments.
Learned Counsel for
the respondent, Miss Phoya, has submitted that questions of admissibility of
confession statements are matters of law for the judge to decide; and once a confession statement is admitted,
it is up to the judge to direct the jury to weigh that confession and to put
what weight they place on it, taking into account other evidence which is
before the jury. In the present case,
the learned Judge had done so. She
cited the cases of Mulachila v Rep. 10 ALR
281, Rep. v Nalivata (ibid) Lawrence (1982), AC 510, and Chan wei Keung
(1967), 2 AC 160.
The law regarding
confession statements in this country is well-settled. It is governed by s.176 of the CP &
EC. This section states:
“176(1) Evidence of a confession by the accused
shall if otherwise relevant and admissible be admitted by the court
notwithstanding any objection to such admission upon any one or more of the
following grounds that such confession was not made by the accused or, if made
by him, was not freely and voluntarily made and without having been unduly
influenced thereto.
(3) Evidence
of a confession admitted under subsection
(1) may be taken into account by a court, or a jury, as the case may be
if such court or jury is satisfied beyond reasonable doubt that the confession
was made by the accused and that its contents are materially true. If not so satisfied the court or the jury
shall give no weight whatsoever to such evidence. It shall be the duty of the judge summing
up the case
specifically to direct the jury as to the
weight to be given to any such confession.”
The interpretation of this section has been
amplified by case law as correctly cited by both Counsel. Skinner, CJ, had this to say in the Nalivata
case:
“I was
referred to the need for corroboration of the accused’s confessions in each
case. Counsel cited a number of cases
decided in our courts and in the East African courts, the most recent of which
was Chiwaya v. Rep. (1)
It was submitted by counsel that although a court may convict on a
retracted confession even without corroboration, such confessions should be
received with great caution, and in practice corroboration is always
sought. I do not think that these cases
govern the law which is now applied in a case such as the present one. Since Chiwaya’s case was decided,
s.176 of the Criminal Procedure and Evidence Code was enacted. Sub-section (3) of the section provides that
a confession may be taken into account if the court is satisfied beyond reasonable
doubt that the contents of the confession are materially true. It goes on to provide that if the court is
not satisfied to that standard the court is to give no weight whatsoever to the
confession.
In the event
of a statement containing a full and frank admission of facts from which the
only inference is the guilt of the accused, it appears to me that once the
court has decided to take the confession into account the court has in effect
decided upon the guilt of the accused, subject of course to
any evidence
supporting a
defence available under Chapter IV of the Penal Code.
In such a
case before a court is satisfied beyond reasonable doubt that a confession is
true, it is necessary in my opinion to see whether there are pointers in the
evidence which tend to confirm the admission of guilt contained in the
confession before accepting such confession as true. The pointers which I would look for are those referred to in R.
v. Sykes. (2) In that case the Court of Criminal Appeal approved
a direction to a jury which was in the following terms:
‘...[A]nd the first
question you ask when you are examining the confession of a man is, is there
anything outside it to show it was true?
Is it corroborated? Are the
statements made in it of fact so far as we test them true? Was the prisoner a man who had the
opportunity of committing the murder?
Is his confession possible? Is
it consistent with other facts which have been ascertained and which have been,
as in this case, proved before us?’
I think that
such are the pointers which a court in Malawi should look for when deciding
whether the contents of a confession are true.”
What the Honourable the Chief Justice said in
this case was fully endorsed when the case went on appeal to this Court in the Chiphaka
case. Chatsika, JA, in
delivering the judgment of the Court stated:
“In dealing
with this matter, the learned Chief Justice quoted the case of R. v.
Sykes. The relevant passage reads
as follows (8 Cr. App. R. At 236-237):
‘...(A)nd the first
question you ask when you are examining the confession of a man is, is there
anything outside it to show it was true?
is it corroborated? are the
statements made in it of fact so far as we can test them true? was the prisoner a man who had the
opportunity of committing the murder?
is his confession possible? is
it consistent with other facts which have been ascertained and which have been,
as in this case, proved before us.’
The learned
Chief Justice in this case went on to say (1971-72) ALR Mal. at 104: “I think that such are the pointers which a
court in Malawi should look for when deciding whether the contents of a
confession are true.”
In the case of Malachila cited above, Unyolo,
J. (as he then was), also stated as follows:
“The first observation to be made about the
caution statement is that it was retracted by the appellant at the trial. The law is now well-settled on the question
of retracted confessions. Counsel cited
the case of Rep. v. Nalivata (1) which holds that any retracted
confession may now be taken into account if the court is satisfied beyond a
reasonable doubt that it is materially true.
The case holds further that before a court can be satisfied that the contents
of a confession are materially true, it should consider whether there is
evidence external to the confession which
corroborates it or with which it is consistent and whether
it is
possible that the accused had the opportunity of committing the offence to
which he confessed.”
Looking at these
authorities and relating them to the present case, the trial Judge correctly
admitted the confession statements, and he sufficiently directed the Jury on
what their duty was in relation to the confession statements made by the 1st
appellant, that is, to consider and decide what weight to attach to them. It was up to the Jury to place any weight
they so found. The convictions in
respect of counts one, three, four and five were, therefore, proper.
The second thrust by
Counsel for the 1st appellant is in relation to counts two and
six. He has submitted that since no
confession statements were tendered by the prosecution in relation to these
counts, there was no other evidence which could sustain a conviction on these
two counts. He submitted that the
learned Judge did not direct the Jury that there was enough circumstantial
evidence to enable them to convict.
Learned Counsel for
the respondent has submitted that indeed the learned Judge did not direct the
Jury on the question of circumstantial evidence. Nonetheless, there was enough circumstantial evidence to warrant
a conviction on these two counts. For
example, Exhibit 20 shows the 1st appellant showing the Police the
place where he killed the second deceased, Veronica Chiwalo. Furthermore, the injuries sustained by the
all the deceased, and the way they died, are similar. Their body parts were removed, their eyes were gorged out and
their intestines and breasts were removed.
Moreover, the deaths of all the deceased occurred within a very short
period of time, and finally, the deaths occurred in the same vicinity. In such circumstances, it would be
reasonable to conclude that the person who killed the victims in counts one,
three, four and five also killed the victims in counts two and six.
It is correct that in
his summing up, the learned Judge indicated that he would deal with the
question of circumstantial evidence, but he did not actually deal with it. It is also correct that the prosecution did
not tender confession statements specifically for counts two and six; but as it
was pointed out by learned Counsel for the respondent, the 1st appellant mentions the
victims in the other confession statements, and failure by the learned Judge to
direct the Jury on the question of circumstantial evidence per se is not
fatal to the counts. The Jury was
entitled to convict on the evidence as a whole. The 1st appellant’s appeal therefore fails, and it is
dismissed.
Mr Chirwa, learned
Counsel for the 2 nd appellant, filed four grounds of appeal, but
argued the first three grounds together. He has submitted that the 2nd
appellant was convicted on the confession statement of the 1st
appellant, and in particular his caution statement, marked Exhibit 28A. In that statement, the 1st
appellant alleged that he sold intestines belonging to Elube Tambala to the 2
nd appellant.
We have stated earlier
in our judgment that the law regarding confession statements in this country is
governed by s.176 of the CP & EC.
Section 176(2) states:
“No
confession made by any person shall be admissible as evidence against any other
person except to such an extent as that other person may adopt it as his own.”
It is quite clear that the confession made by
the 1st appellant could not be used by the prosecution to secure a
conviction against the 2nd
appellant unless the 2 nd appellant adopted it to be his own. This being the position, we have to consider
whether the 2 nd appellant adopted the confession to be his
own. In his own caution statement, the
2nd appellant denied involvement in these murders. The police searched his house, rest house
and bottle store, but found nothing incriminating. It was the 1st appellant’s evidence that he mentioned
the 2nd appellant because he was being beaten by the Police; that he admitted because he was beaten by
the Police; and that the statements
were being written by the Police. In
cross examination, and indeed in examination-in-chief, the 1st
appellant denied the involvement of the
2nd appellant.
In his summing-up to
the Jury, the learned Judge said he would address the Jury on confessions; but he did not do so. Clearly this was an error on the part of the
learned Judge. Had he addressed the
Jury on the question of confessions, as we have outlined above, the Jury may
not have convicted the 2nd appellant.
Learned Counsel for
the Respondent had submitted that the 2nd appellant was convicted on
the basis of circumstantial evidence.
We have not identified any circumstantial evidence in the evidence which
connects the 2nd appellant with the offence, except the confession
of the 1st appellant, which was retracted during the trial.
For these reasons, the
conviction against the 2 nd appellant cannot stand; it is set aside, and the appeal
succeeds. He should be released
forthwith unless lawfully held on other matters.
DELIVERED in open
Court this 18th day of October 2001, at Blantyre.
Sgd ................................................
R A
BANDA, CJ
Sgd ................................................
H M
MTEGHA, JA
Sgd ................................................. A S E
MSOSA, JA