Mwanja v State (Criminal Appeal 85 of 2018) [2020] MWHCCrim 23 (18 February 2020)

fen Oa IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CRIMINAL APPEAL NO. 85 OF 2018 Being Criminal Case No. 60 of 2017 in the FGM’s Court Sitting at Chitipa ANDREW MWANJA VERSUS THE STATE CORAM: HON. JUSTICE T. R. LIGOWE C, Ghambi of Counsel for the Appellant W. Nkosi of Counsel for the State G. Msukwa, Official Interpreter R. Luhanga, Recording Officer and Court Reporter JUDGMENT Ligowe J 1 The appellant was convicted of the offence of defilement contrary to section 138 of the Penal Code and sentenced to imprisonment for 10 years with hard labour with effect from 14" March 2017. He now appeals against the conviction and the sentence on the grounds that the prosecution had not proved the case beyond reasonable doubt, the Magistrate placed no weight on the evidence of the convict and the sentence is manifestly excessive, It is not in dispute that the girl who was defiled was 13 years old at the material time. The issue is whether she was defiled and defiled by the convict. In the Magistrate’s court, Weston Kaweta, the girl’s father, gave evidence that the convict was his wife’s nephew. He came to Weston Kaweta’s house on a motor bike on 7" January 2017 around 5 pm. He asked Weston Kaweta’s Children to escort him to a nearby grocery shop at Guza Market to buy soap. Kaweta allowed his 13-year-old daughter and 10-year- old son to go with him. They delayed to come back and he followed, but they passed him at the junction to Nkhamanga Primary School. By the time he came back he found the accused had already dropped the children and gone. The son reported to his father that at some point the convict switched off the motorbike and asked the children to push it into a road that leads into a bush. Somewhere the accused told the son to stay with the motorbike as he went into the bush with the daughter. After sometime he came back from the bush with the daughter and he took the children home. After hearing this Weston Kaweta went to the convict’s house the following morning to confront him, but he was not there. The son gave unsworn evidence adding on to what he had told his father that after the convict had bought the children five tablets of Azam soap and a packet of soya pieces, he took the girl behind the grocery shop, but the son never heard what they discussed. When going home they branched towards Nkhamanga School. That is where after a distance the accused switched off the motor bike and asked the children to help pushing it. And then he took the girl into the bush and told the boy not to reveal to anybody including his father. They took time. It started getting dark, he was afraid and he started crying. That is when they came back. After repeating that the boy should not report anything to anyone, the convict drover the children home. When cross examined the boy said he did not hear her sister cry, but as she came from the bush, she was walking legs apart. The girl gave sworn evidence. She said that at the grocery shop the convict called her aside and proposed love to her but she denied. She also gave the same evidence like her brother that the convict switched the motor bike off, asked the children to push it and then told her brother to watch over it. He then took the girl by the hand and pushed her into the bush where he undressed her and had sex with her for a long time. She said she felt pain in her vagina. He left her when the boy started crying. She was walking legs apart because of pain and she was bleeding from the vagina. She also felt some slippery substance from there. When they got home, she was afraid to inform her father about it. But she revealed to her grandmother after she started feeling pains in the stomach and had developed sores in the vagina. In his cross examination, Weston Kaweta said that the girl started suffering on 10" January 2017. He eventually confronted the convict on the issue, but he denied. He gave two dates as to when the girl revealed the matter to her grandmother, 12" January 2017 and 12" March 2017. On 13" January 2017 the girl told him that she had been injured by the convict. He reported the matter to police on 14" January 2017 There is also evidence of Gabriel Simwanza, a clinical officer at Chitipa District Hospital, that the girl reported to the One Stop Centre on 14"" March 2017 with her aunt, complaining of abdominal pains, missed periods and that she had slept with a man. He found that she indeed was no longer a virgin but was not pregnant. She had a very offensive discharge but no bruises, so she was treated for syphilis and other diseases. In his evidence in defence the convict admitted having taken the children to the market on the material evening around 6 pm and he brought them back around 7 pm. When going back to drop them he saw their father but he passed him. After he heard that their father was looking for him, he went to see him. He was asked how he moved with the children the previous night and he assured him that nothing went wrong. After three months the girl was escorted to his house claiming that he had made her pregnant, but he denied. On this evidence the lower court found defilement proved. The court found the movements of the convict suspicious. He caused the children to push the motor bike as though it had a fault and yet afterwards rode it with them home. He passed their father on the road without stopping for him. And, he dropped them at home without having to talk with their mother to explain why he delayed to bring them back. The Magistrate mentions that the convict 10 1] 12 13 tried to allege that the girl had a boyfriend but never mentioned his name. So, he found his defence baseless. He found that the girl’s evidence had been corroborated by the evidence of her brother. Counsel for the appellant argues that Weston Kaweta’s evidence is inconsistent as to the date when the girl revealed her predicament to the grandmother. At first, he said 12% January 2017, but later mentioned 12" March 2017. Counsel also contends that the boy’s evidence is inconsistent. He could not have not shouted while her sister was being dragged into the bush in fear of the convict and immediately report the matter to his father when they got home. Counsel submits that with these two inconsistencies, it is reasonably doubtful that the convict dragged the girl into the bush while her brother watched over the motor bike. This court’s view is that the evidence of the father on the date the girl revealed to her grandmother that she had been defiled, and the boy’s report to his father, cannot be considered in isolation of the evidence of the girl herself and her brother about what he saw. All the evidence has to be considered in total. It will be seen below that the date she revealed has no relevance and that the boy was not inconsistent in any way. His report to the father also has no relevance as to the guilt of the appellant. Counsel also argues that the lower court relied on circumstantial evidence to reach at the conviction, inferring guilt from the evidence of the boy, the girl and the clinical officer and that the appellant admitted to have carried the children on his motorbike that day. Circumstantial evidence has to be contrasted with direct evidence. Direct evidence is evidence of facts in issue which a witness claims to have personal knowledge of. For instance, it is direct evidence when the girl testifies that the appellant took her by the hand, pushed her into the bush, undressed her and had sex with her for a long time. The fact in issue in this case is whether the appellant had sex with the girl. Circumstantial evidence is evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. That is what “works by cumulatively, in geometrical progression, eliminating 14 16 other possibilities” DPP v. Kilbourne [1973] AC 729 at 758 as submitted by Counsel for the appellant. That is the evidence from which an inference of guilt should not be made before the court is sure that there are no other co-existing circumstances weakening or destroying the inference of guilt. Teper v. The Queen [1952] AC 480, Reading the judgment of the lower court, the Magistrate did not find the appellant guilty of the offence based on circumstantial evidence but direct evidence given by the girl as corroborated by her brother, father and medical evidence. Regarding the corroboration Counsel for the appellant contends that the evidence of the boy is not independent enough to qualify for corroboration because it arose at the same time and from the same circumstances as the girl. He also argues that evidence of the clinical officer is not sufficient corroboration as it is only relevant as to the question whether the girl ever slept with a man but not that the appellant is the man. Indeed, as submitted by Counsel for the appellant, corroborative evidence is independent evidence which confirms in some material way not only that the offence was committed as alleged by the complainant but that it was the accused who committed it. Rep vy. Kapalepale [1971-72] ALR Mal 150. Counsel however is misapplying Nyasulu v. Rep [1 971-72] ALR Mal 268 to argue that the boy’s evidence arose at the same time and from the same circumstances as the girl. In that case Edwards J. applied R. v. Whitehead [1929] 1 K. B. at 102 and R. v. Evans 18 Cr. App. R. at 124, saying at page 271: - “In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated” — per Lord Hewart, C. J. in R. v. Whitehead [1929] 1 KB. at 102; 139 L. T. at 641. And to be ‘extraneous to’ such witness it is not enough that the material to be used as corroboration be given in evidence by another witness if that merely means that it “proceeds circuitously from” the witness who is to be corroborated (per Lord Hewart, C. J. in R. v. Evans 18 Cr. App. R. at 124. The material to be used as corroboration must not originate with the witness who is to be corroborated.” 17 18 19 20 2d Edwards J. went further to say that “evidence of a physical manifestation on the part of the witness to be corroborated, given by another witness, may be accepted as corroborating the evidence of the first-mentioned witness if the court is satisfied that the manifestation was genuine and not part of an act.” He gave instances like “the distressed condition of a complainant” and “screams or protests uttered by a complainant at the time of an alleged offence.” Surely, the boy gave no material or statement circuitously coming from the girl. He gave evidence he had perceived on his own. Regarding the evidence of the clinical officer, given the long time it took before the girl was examined at the clinic, and allegations that she had a boyfriend and that she had married someone before the case was concluded in the lower court, the medical report cannot indeed be considered as corroborative evidence of the fact that it is the appellant who defiled her, That however, does not take out the fact that she was defiled by the appellant on or about 7 January 2017 as proved by her evidence corroborated by her brother’s evidence. The girl is recorded as having said in the lower court: - “He took my hand and pushed me into the bush. He pulled off my pant, put me on the ground and he produced his penis and penetrated my vagina. He had sex with me for a long time.” This is corroborated by the fact that her brother saw the appellant taking her into the bush, spent a long time there and she came back walking legs apart. The girl in the present case gave sworn evidence and so the requirement for her evidence to be corroborated was a matter of practice. Her brother gave unsworn evidence, I am aware of section 6 (2) of the Oaths, Affirmations and Declarations Act that an accused shall not be liable to be convicted on unsworn evidence unless it is corroborated by some other material evidence implicating him. The appellant was convicted on the evidence of the girl and not the boy. The girl’s evidence after all, corroborates the boy’s evidence. ae eo 24 25 26 The conviction is upheld and the appeal against conviction is dismissed. The appeal is also that the sentence is manifestly excessive. Counsel argues that the court should consider the ages of the convict and the victim, citing Emmanuel Lino vy. Rep, Criminal Appeal No. 33 of 2018 (Principal Registry) (unreported) for the principal that the younger the victim, the harsher the sentence, and the older the accused, the harsher the sentence. Counsel also relies on the guideline given in Emmanuel Lino vy. Rep. Noting that the starting point of sentencing in defilement cases is 14 years to be increased or reduced according to aggravating and mitigating factors, the court said: - “Where the victim is less than 8 years old a sentence of not less than 14 years may be imposed, and where the victim is between 8 and 12 years old, a sentence of not less than 10 years may be imposed. Where the victim is more than 12 years old a sentence not less than 7 years may be imposed depending on the age of the victim and other mitigating factors. So, Counsel contends that considering that the appellant in the present case is a first offender and the victim was 13 at the time the offence was committed and that she is now married and with a child, the appellant deserves a li ghter sentence. The guideline in Emmanuel Lino vy. Rep needs to be understood clearly. It suggests a sentence of imprisonment for more than seven years to be imposed where the victim is more that 12 years old. The rule for dealing with an appeal against a sentence was stated in Rep v. Kholoviko [1996] MLR 355 and Rep v. Mkoma [1 995] 2 MLR 598, that since sentencing is a matter of discretion for the sentencing court, the appellate court will not interfere with the discretion unless the sentencing court erred in principle, or the court overlooked a material fact or the sentence arrived at is manifestly excessive or inadequate as to comport that there was an error of principle. The appeilant was 34 years old at the time he committed the offence, old enough to face the full rigour of the sentence that fits the crime he committed. That the girl later got —, 27 married has no connection to the offence he committed on her. I see no reason to interfere with the sentence the lower court imposed on the appellant. His appeal against the sentence is also dismissed. Delivered in open court at Chitipa this 18" day of February 2020.