Chalera and 2 Others v R (Civil Appeal 5 of 2012) [2014] MWSC 3 (28 August 2014)

Malawi Judiciary IN THE MALAWI SUPREME COURT OF APPEAL MSCA CIVIL APPEAL NO. 5 OF 2012 (Being the High Court Criminal Case No. 17 of 2001) BETWEEN: ANDREW MORRIS CHALERA.........cccceceeececeeeeeeenee eens 1ST APPELLANT AARON MAKUMBA 0.0... cece tees cece ee eeen teen ea eeeen ean 2ND APPELLANT RAJAB MPAKA ooo. ccc cee cee eee cent ee ee en een ease een eaeenenes 3RD APPELLANT -AND- THE REPUBLIC... cee ccccec nec eeen ecu ee een eeneeueereetnennes RESPONDENT BEFORE : THE HONOURABLE THE CHIEF JUSTICE A. S. E. MSOSA, SC THE HONOURABLE JUSTICE A. K. C. NYIRENDA SC, JA THE HONOURABLE JUSTICE R. R. CHINANGWA SC, JA Domasi, Counsel for the Appellant Chitsime, Counsel for the Respondent Chimtande, Official Interpreter Banda (Mrs), Personal Secretary JUDGMENT NYIRENDA SC, JA (The Chief Justice, and Justice Chinangwa, JA Concurring) Andrew Morris Chalera, Aaron Makumba and Rajabu Mpaka, herein after referred to as the first, second and third appellant respectively, were charged with and convicted of murder contrary to section 209 of the Penal Code. Their respective convictions were upon a full trial by jury. They were each sentenced to suffer death in a manner prescribed by law. They all appealed against their conviction and sentence. The allegations against the appellants were that they jointly caused the death of Solomoni Kwezani on the 18% June 1999 near Ndege Trading Centre in Zomba District. At the hearing of the appeal the Court was told that the first appellant died while in custody. His appeal was therefore frustrated and consequently lapsed. There was another development. The record of the proceedings in the court below was incomplete. The summing up to the jury by the trial judge was not part of the record. The Court was informed that all efforts had been made to trace that part of the record but it still remains missing. It therefore became a preliminary matter to determine what becomes of the appeals in such circumstances. The Court was accordingly addressed on this development and the legal implications. We are indebted to counsel in that regard. In Jailosi v Republic [1995] I MLR 102 where the whole record of the lower court was missing except a copy of the judgment, the High Court, on appeal, directed that the appeal would proceed using the judgment alone. It is not clear from the decision if the state and the appellant agreed that the analysis of facts in the judgment was more than sufficient and represented an accurate account of the facts and evidence before the court below. We can also not tell what eventually transpired during the actual hearing of the appeal. The decision in the case was only about the direction to proceed in the absence of the record. Further, what was on appeal was merely a point of law. Moreover the appeal was from a Magistrate sitting alone. In such cases the decision is that of the Magistrate alone. The judgment would normally be comprehensive. It would include a comprehensive account and analysis of the facts and evidence in the case, an assessment of the facts and evidence, where necessary commenting on the demeanour and credibility of witnesses. A decision would then be made based on the findings and the justification for those findings. It was probably on these considerations that the learned judge in that case felt the appeal could proceed using the judgment alone. We do not think the case offers reliable guidance. Unlike in civil appeals as provided for in Order 111 Rule 2 of the Supreme Court of Appeal Rules where appeals are by way of rehearing, that power is not provided for in criminal appeals under the Rules or the Supreme Court of Appeal Act itself. This suggests to us that in criminal appeals much will depend on the completeness of the record. It says to us therefore that it is critical that a record in criminal cases be prepared with particularity. It is for that reason, we believe, that the Rules, in Order IV rule 9, sets out, in particular detail, what the record in criminal appeals from the court below, in its original jurisdiction, should contain. Rule 9 (1) provides: “The record of appeal in appeals and applications relating to appeals from a court below acting in its original jurisdiction in criminal cases shall contain legible typed copies of the following items arranged in this order- (a) The index; (b) The charge or information; (c) The transcript of the short hand note of the evidence or, if no such note has been taken, the Judge’s notes; (d) The summing up to the assessors; (e) The judgment or any additional ground or explanation thereof; (f) The proceedings on or after sentence (g) All documentary exhibits put in at the trial including depositions read in consequence of the absence of the witness: provided that in the case of books of account or any other documents of great length, extracts of the relevant portions thereof only shall be included; (h) The notice of appeal or notice of application for leave to appeal, or notice of application for extension of time in which such notice shall be given.” In a trial by jury the duty of the judge is set out in sections 319 and 320 of the Criminal Procedure and Evidence Code. Section 319 requires the judge to sum up the law and the evidence in the case. Section 320 details the duties of the judge and provides: (1) Ina trial by a jury it is the duty of a judge - (a) to preside over and control the proceedings in accordance with the provisions of this code and any other relevant written law; (b) to decide any questions of law arising in the course of the trial including questions as to the admissibility of evidence; (c) to decide all questions upon the meaning and construction of all documents given in evidence at trial; (d) to decide on all matters of facts which it may be necessary to prove in order to enable evidence of particular matters to be given; (e) to decide whether any question which arises is for himself or for the jury, and upon this point his decision shall bind the jurors. (2) The judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact or upon any question of mixed law and fact relevant to the proceedings.” Subject to the directions of the judge the duty of the jury is to return a true verdict in the case. Thus while the jury have the ultimate authority to return the verdict, such verdict will have been guided by and subject to the directions which the judge will have made by the summary. What is more is that the verdict will have been guided by the opinion which the judge might consider important to make on the evidence. The judge might consider it important to express his opinion on the demeanour of particular witnesses. Because jurors are judges of facts, such an opinion will have a vital bearing on the verdict they render. On appeal against conviction, the court of appeal will look at the facts and the evidence and match it to the relevant law constituting the offence charged. The court will then, as much as could be achieved, put itself in the shoes of the jury as well as the judge, and then determine whether the verdict was justifiable. In that process if the judges summing up is not available then certainly the appellate court is deprived of a vital component of the matter that would guide its decision. If the court then turned to its role as jury, while it will analyse the facts and the evidence, such analysis would be devoid of the judge’s opinion on demeanour, where there was such opinion, and therefore inconclusive. The facts of the present case were that the deceased, Solomon Kwezani, was shot and died on the 18 June 1999. The deceased was, on the fateful day, being driven in his vehicle, from his home village to Zomba City to purchase goods for sale. Apart from the person who was driving there were other people in the vehicle. On the way the vehicle broke down. As they were about to start off after attending to the fault three men approached the vehicle. One of the three had a gun. The three men confronted the deceased and proceeded to pull out the deceased bag from the vehicle which contained K76, 000.00 for his business. The deceased attempted to get his property back but the man with the gun did not hesitate to fire at the deceased who died on the spot. The incident was investigated by police leading to the arrest and eventually the prosecution and conviction of the three appellants. The conviction of the appellants, as we see it, rested on the testimony of a lady who was the wife of the driver of the vehicle. Because she was unwell at the time, she told the court below that she was not able to run away from the scene like her husband and other passengers who were in the vehicle did. Because she remained in the vehicle, she was able to closely see the three men. In particular she recognised and identified the first appellant who was the person with the gun. She was not asked to identify the two other appellants and she did not say in court that she recognised them to have been among the three persons who attacked them. The evidence against the second and third appellant was from caution statements. The appellants implicated each other by their respective caution statements. We do not intend to comment on the value of the caution statements. We can only speculate that they must have been given due weight by the jury for the second and third appellants to be convicted. This is where our dilemma begins. Apart from the first appellant whose appeal has collapsed, the case against the other two appellants was circumstantial. We believe much depended on whom the jury believed as between the investigators and the appellants. In turn that might have depended on the directions the learned judge gave to the jury including the judges expression of opinion on the facts, the caution statements and the demeanour of the witnesses. We could at this stage of the case attempt our own analysis of the facts and evidence on record, but would remain deprived of assessment of the demeanour of both the investigators as well as the appellants. The trial judge had the benefit of assessing the demeanour which might have been expressed in the summing up. A vital part of this case is therefore missing. It has been suggested elsewhere that a reconstruction of the record, where it is missing, would serve the purpose in place of the original record, see S.v Sibelelwana (A402/2011) 2012 2AWCHC 150. In the instant case a reconstruction of the missing part of the record would require the judge in the court below to reconstruct his summation to the jury as close as possible to what he actually said. It is now almost thirteen years since the trial was concluded. The learned Judge would not be expected to recall what he might have left the jury with. How do we deal with this matter then? In the Sibelelwana case: Steyn, J. Said: The record of the missing proceedings in the trial Court is of cardinal importance in order to properly hear this appeal and it is correct as argued on behalf of the appellant, that if it is apparent that the record is inadequate for a proper consideration of the appeal, it may lead to the conviction and sentence being set aside. As we state above a vital part of the record in the instant case is missing. The record is therefore inadequate. The chances of reconstruction are virtually too remote. The record is missing through no fault of the appellants but owing to a fault on the part of the state’s servants. It has been suggested that the mere fact that there is no or no adequate shorthand note of the trial is not of itself a ground for saying that a conviction is unsafe or unsatisfactory. That in order that the appellant may claim that conclusion, he must be able to show something to suggest that there was an irregularity at the trial or misdirection in the summing up: R. V Lelacer 56 Cr App. R. 727. We think this would result in miscarriage of justice to the extent that it places burden on the accused person. R V Payne and Spillane, 56 Cr. App. R. 9 is more instructive where Megaw L. J. said there is a very great possibility of miscarriage of justice if the provision which is traditional in the courts of a full and accurate note of both the evidence and the summing up is for any reason not available. What we make of the scanty precedent that we have been able to scout is that a court of appeal will weigh the degree, extent and relevance of the part of the record that is missing and cannot be reconstructed. Where the missing part of the record is not substantial, immaterial and inconsequential as would not result in miscarriage of justice, the appeal shall be proceeded with and finally determined. Where the missing part of the record is substantial, material and consequential, such that proceeding with the appeal would result in injustice, the conviction should be set aside without the full appeal being heard. Where the conviction is set aside it behoves the Court of Appeal to consider whether that be the end of the matter or, where the interests of justice so require, to order the appellant to be retried. Whether an order for retrial should be made will depend on the circumstances of the individual case. In the case at hand the appellants were all arrested around June 1999. They were kept in custody up to the time they were convicted and sentenced on the 234 August 2001. It is now fifteen years and some months since they have been behind bars. It will be inappropriate in those circumstances to order a retrial. We consequently order that the two appellants be released from custody forthwith unless there is other lawful cause for them to continue to be kept there. Pronounced in open Court at Blantyre this 28 day of August, 2014. THE HONOURABLE JUSTICE A. S. E. MSOSA SC, CJ> Signed.......... (Miron Le. CC os AC i OO as Ce THE HONOURABLE JUSTICE)R. R. CHINANGWA SC, JA