Benson Nguila v The Queen ((1963-1964) Z and NRLR 14) [1964] ZMHCNR 1 (3 January 1964)

BENSON NGUILA v THE QUEEN (1963 - 1964) Z and NRLR 14 1963 - 1964 Z and NRLR p14 [Before the Honourable the Chief Jus�ce, Sir Diarmaid CONROY on the 3rd January, 1964.] Flynote Arson - accused jointly charged - statements by accused - duty on prosecu�on to tender such statements not absolute - wrong exercise of discre�on may be ground of appeal - defence of compulsion. Headnote The appellant was jointly charged with another accused with the crime of arson. It was contended that the other accused's plea of guilty was equivocal (in that he claimed to have been compelled to commit the offence), that he should have been acquited, and that as the appellant was jointly charged with him he also should be acquited. It was also contended that the appeal was en�tled to succeed since the prosecu�on had failed to tender in evidence at the trial a statement which amounted to a simple denial of the charge. Held: (a) The alleged threats could not amount to compulsion in law. (b) The other accused's plea was unequivocal and he was properly convicted. (c) The prosecu�on has a discre�on as to what evidence it calls, although it will normally put in evidence any documentary evidence relevant to the case. Appeal against convic�on dismissed. Cases cited: (1) McGrowther's Case 18 St. Tr. 391. (2) Siakukuyu Julias v Reginam 6 NRLR 24. (3) R v Sugarman 25 Cr. App. R 109. (4) R v Harris [1927] 2 KB 587; 20 Cr. App. R 86. (5) Adel Muhammed el Dabbah v Attorney-General for Palestine [1944] AC 156. F T Jones, Crown Counsel for the Crown J J Skinner for the appellant Judgment Conroy CJ: This is an appeal against convic�on and sentence. The appellant was convicted in the Subordinate Court, Class II, at Fort Jameson, on 9th October, 1963, of arson, contrary to sec�on 294 of the Penal Code. He was sentenced to three years imprisonment with hard labour. The appellant was charged with another accused, Taison Tembo, and the par�culars of the offence were as follows: Taison Tembo and Benson Nguila, jointly and whilst ac�ng together, on or about the 12th day of August, 1963, at Chibaula Village, Chief Mafuta, in the Fort Jameson District of the Eastern Province of Northern Rhodesia, did willfully and unlawfully set fire to a building, namely the house of Kanima Nyirenda. 1963 - 1964 Z and NRLR p15 CONROY CJ Two grounds of appeal were argued before me. The first was that the appellant and Taison Tembo were charged that they commited arson " jointly and whilst ac�ng together ", that this wording created a joint offence analogous to conspiracy, and that therefore both accused must be convicted or acquited. In fact, the magistrate convicted Taison Tembo on his own plea of guilty and he has not appealed. The steps in the appellant's argument are that, as the plea made by Taison Tembo was not unequivocal, he should have been acquited, and because the offence charged was a joint and indivisible one, the appellant should by reason of Taison Tembo's acquital, be also acquited. When the case was originally called on, the charge was explained to the accused and Taison Tembo said: I understand the charge. I do not agree. I was just instructed to do it by Benson Nguila: he told me to burn the house. Taison Tembo was then put back and the trial of the appellant proceeded. At the end of that trial the appellant was convicted as charged. In respect of Taison Tembo, the public prosecutor then made a statement of facts in the following terms: With regard to accused No. 1, Taison Tembo, the following is a statement of facts. On the 12th August, 1963, accused No. 1, Taison Tembo, and others who have not yet been arrested proceeded to Chiwaula village ac�ng under the guidance of Benson Nguila, accused No. 2. There they came upon headman Chiwaula, and they proceeded to chase him from the village. They then returned from the village, where accused No. 1 and 2, Taison Tembo and Benson Nguila, set fire to headman Chiwaula's house. When the villagers returned to their village late that day the en�re village had been burned down. Not only had the house been destroyed but also the villagers' tobacco barns. It means that the villagers have not only to rebuild storage for their future tobacco crops but also their houses. Twenty - eight buildings in all were destroyed. In reply to this Taison Tembo said: I agree with what has been said by the Prosecutor. But I did it at Benson Nguila's instruc�ons. The whole village was burnt down. Taison Tembo was then given an opportunity to make a plea in mi�ga�on, and he said: I and the other youths did the burning on the orders of Benson Nguila: he is our leader in U. N. I. P. He gave us the matches to burn the houses down. I do not know why we had to burn down the village. He just told us to do it. He said that if we did not do this he would burn down our own houses. 1963 - 1964 Z and NRLR p16 CONROY CJ From the foregoing it is quite clear to me that Taison Tembo was saying that he had, together with others, actually done the burning, and done it on the orders of the appellant, who was Taison Tembo's leader in U. N. I. P. He carried out the appellant's orders because if he had not done so he feared that Benson Nguila would burn his house. Sec�on 17 of the Penal Code deals with compulsion. It provides that a person is not criminally responsible for an offence if it was commited only because the accused was compelled to do it by threats on the part of his fellow offender " instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence". McGrowther's Case 18 St. Tr. 391 is quoted in paragraph 45 of the 35th edi�on of Archbold as authority for the proposi�on that, by common law, there must be a present fear of death, and the fear of having houses burned will not suffice. Therefore threats that the appellant would burn down Taison Tembo's house if he did not burn down the complainant's, did not cons�tute compulsion, either under the statute law of Northern Rhodesia or the common law of England, and I am sa�sfied, reading the record as a whole, that the plea was unequivocal and that Taison Tembo was properly convicted. I am also sa�sfied that the form of charge did not create an indivisible offence of jointly commi�ng arson. I agree with Mr. Skinner that this was not the happiest form of words to use, but I think that they can only have meant that the appellant and Taison Tembo were accused of the same offence commited in the course of the same transac�on. The first ground of appeal therefore fails. The second ground of appeal was that statements made by the appellant to the police were not put in evidence by the Crown, although such statements (being an early denial of the offence) affected the ques�on of guilt or innocence. In his original grounds of appeal, dated 21st October, 1963, the appellant recounted how on 4th September he was taken to the boma by a police constable and accused with the offence of burning the village in ques�on. He denied the case and said that he was away at another village collec�ng a bicycle at the �me. He was ques�oned about this by the police, and detained in custody while the accuracy of his answers was inves�gated. He was taken to court on 19th and 27th September, and 4th October. On the later date he said, according to his grounds of appeal: On 4th October, 1963, when I was again taken to court, I was told by the police to give statement in wri�ng when I was first interrogated. They asked me the statement of the first case. I asked them how could this be of taking two statements of one case? Without passing �me, I was taken before the magistrate with another alleged offence of arson at this �me. When the mater was first raised before me in argument, I adjourned the hearing so that the ques�on of whether any statements had been made by the appellant could be inves�gated. I gave the appellant an opportunity to file an affidavit se�ng out the facts, if he wished to pursue this point. I directed the Crown to inves�gate whether a statement or statements was or were made by the appellant, and, if so, copies were to be supplied to the appellant's counsel and to the court. 1963 - 1964 Z and NRLR p17 CONROY CJ On 2nd December, the appellant made an affidavit in which he swore that on 4th September he was arrested and brought to Fort Jameson police sta�on where he was detained. The following day he made a statement to a police officer that he was not present at Chibaula on 12th August, but was at Mphara Village on that day, where he had gone to collect a bicycle from the Rev. Samuel Thewois. This statement was typed out by the police officer, and was read over to, and signed by, the appellant. On 4th October he made a second statement to the police officer in which the appellant denied the offence and repeated that he had gone to Mphara Village to collect a bicycle on 12th August, 1963. This statement was read over to the appellant who signed it. The appellant also swore in his affidavit that prior to making this statement he believes he was not warned or cau�oned. He does not say whether any warning was given or cau�on made before the first statement. Crown counsel supplied the appellant's counsel and the court with copy of a warned and cau�oned statement made and signed by the appellant on 4th October, in which he said only: "I deny the charge. I do not know the offence." Crown counsel had in his possession the police docket rela�ng to this case which starts with an entry on 13th August, 1963, and cons�tutes a running file dealing with the police inves�ga�on. He had obtained from this docket the statement of 4th October, and a search of the docket showed no sign of any previous statement made by the appellant. The officer in charge of the inves�ga�on has assured Crown counsel that only one statement by the appellant was recorded, on 4th October, in connexion with this case. Crown counsel had shown the docket to the appellant's counsel. I am sa�sfied as a fact that the appellant did not make a statement on or about 5th September, and that the statement produced by Crown counsel is the one that he made on 4th October. I do not believe the appellant's affidavit when he says that on 4th October he made a statement to the police, which was read over to, and signed by, the appellant, in which he repeated that he had gone to Mphara Village to collect his bicycle on 12th August. An inspec�on of the statement shows that this averment in the affidavit is untrue. It is also significant that in his original grounds of appeal, where the appellant deals with the mater in some detail, he does not allege that he made a writen statement on first arrest. Indeed, it appears from the paragraph of these grounds set out above, that the appellant was saying that he did not make statement on 4th October either. The Crown conceded that the statement of 4th October should have been put in by the Crown at the trial, but argued that the failure to do so did not cons�tute any miscarriage of jus�ce. Neither counsel was able to quote authority as to whether there is any duty on prosecu�ng counsel to put in a statement made by the accused in every case, other than the judgment of Somerhough, J, in Siakukuyu Julias v R 6 NRLR 24. Counsel was unable to quote any authority for the views expressed by the learned judge in that case. I also have been unable to find any authority directly in point, but I have found authority dealing with the responsibility of prosecu�ng counsel for calling available witnesses. I see no difference in this regard between the duty of prosecu�ng counsel 1963 - 1964 Z and NRLR p18 CONROY CJ in respect of calling or tendering witnesses who can give relevant evidence and the adducing of writen evidence. In Sugarman's case 25 Cr. App. R109 Lord Hewart, CJ, said: It cannot be too o�en made plain that the business of counsel for the Crown is fairly and impar�ally to exhibit all the facts to the jury. The Crown has no interest in procuring a convic�on. Its only interest is that the right person should be convicted, that the truth should be known, and that jus�ce should be done. In R v Harris [1927] 2 KB 587 at 590, Lord Hewart made an interlocutory remark that - In criminal cases the prosecu�on is bound to call all the material witnesses before the court even though they give inconsistent accounts, in order that the whole of the facts may be before the jury. I cannot believe that either of these dicta is authority for the proposi�on that the Crown has to call every witness who can speak as to the facts in issue. If this was so the need for defence witnesses would largely fall away. Indeed, the later dictum has been expressly nega�ved by the Judicial Commitee of the Privy Council in Adel Mohammed el Dabbah v Attorney-General for Palestine [1944] AC 156. This case is authority for the proposi�on that the prosecu�on in a criminal case has a discre�on as to what witnesses they wish to call. It is consistent with that discre�on that it should be a general prac�ce of prosecu�ng counsel, if he finds no sufficient reason to the contrary, to tender for cross - examina�on by the defence witnesses whose names are on the back of the informa�on but who have not been called to give evidence for the prosecu�on, but it remains a mater for the discre�on of the prosecutor. Some assistance on this point can be obtained from paragraph 1373 of the 35th edi�on of Archbold. I consider that prosecu�ng counsel has a discre�on as to what evidence he will adduce. If he exercises that discre�on in a way which is unfair to the accused or likely to mislead the court by preven�ng the full facts emerging, then he has exercised his discre�on improperly, and his failure may be a good ground of appeal. There is therefore a general rule of prac�ce that prosecu�ng counsel normally tenders for cross - examina�on by the defence, a witness called by the Crown at the preliminary inquiry, whom he does not wish to examine, and he normally puts in evidence any documentary evidence relevant to the case. As an excep�on to that general rule, it may be that in par�cular cases it is necessary for him, in the interest of jus�ce to refuse to call a witness or not to put in a document. But this is a rule of prac�ce, and the Crown must retain control over its own case, and must have a discre�on as to what evidence it calls. A trial does not cease to be a lis because it is criminal. I agree with Crown counsel that the public prosecutor should have put in the statement of 4th October. But in the circumstances of the present case I do not consider that the failure to do so in any way occasioned a miscarriage of jus�ce. The evidence against the appellant was that of two eye - witnesses who saw the appellant chasing the headman 1963 - 1964 Z and NRLR p19 CONROY CJ from the village with a knobkerry and an axe, then they saw him set fire to two houses in the village; the complainant's house, the subject of the charge, and the headman's house. Against this direct tes�mony the appellant, a�er being warned of his rights, elected to make an unsworn statement. The court may atach what weight it chooses to the contents of such statement. The balance of opinion seems to be that an unsworn statement is evidence in the case, but is of less weight than sworn tes�mony, which can be tested by cross - examina�on. Had the statement been put in, it could have been disadvantageous to the appellant, as the magistrate might well have asked himself why the appellant, in his statement of 4th October did not put forward the alibi which he later raised in court. If the statement of 4th October had raised the alibi at that early stage, I think I should have decided that the failure of the Crown to put in the statement cons�tuted a miscarriage of jus�ce in that it might have deprived the appellant of a reasonable chance of acquital. As the statement was merely a bald denial, the equivalent of an early plea of not guilty, and did not raise the alibi, I consider that no miscarriage of jus�ce occurred. It is also relevant that the appellant did not raise the ques�on of alibi when called upon to plead. He then said " I understand the charge. I deny it. I had nothing to do with it. " If he had then raised the issue of alibi, greater credibility would have atached to the unsworn statement he subsequently made. In his judgment the magistrate said that he was impressed by the conduct and demeanour of the two chief witnesses for the prosecu�on, and he had no hesita�on in accep�ng their evidence as true. He equally had no hesita�on in rejec�ng the appellant's unsworn statement as untrue and rejec�ng the evidence of the defence witness, Gelison Nkhoma. It is manifest to me that the magistrate's finding on credibility, based as it was upon the tes�mony given by these three witnesses in the witness - box and the appellant's statement from the dock, would not have been affected if the statement of 4th October had been put in. For the foregoing reasons I dismiss the appeal against convic�on. (The learned Chief Justice went on to quash the sentence of 3 years imprisonment with hard labour and to substitute one of 10 years imprisonment with hard labour.)