Mpotandevu v R (Criminal Appeal 185 of 2012) [2013] MWHC 491 (8 August 2013)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CRIMINAL APPEAL. NO. 185 OF 2012 (Being Crim. Case No.192 of 2011 from Dedza First Grade Magistrate Court) BETWEEN: CHOSADZIWA MPOTANDEVU.........c.cscsssssessenssessesnsarrecssesessessens -AND- THE REPUBLIC.............cscssscesscsssssecssssenssnsre sessessnscrenssaseanscressessacssensereseesrers RESPONGENt wsesseeaseeeee APPellant CORAM: Justice C. J. Kachale, PhD Appellant, Present but not legally representation Namanja, Senior State Advocate for the Respondent Jere (Mrs.), Court Reporter Kaferaanthu, Court Interpreter JUDGEMENT On 18° May 2011 Chosadziwa Mpotandevu was convicted for the offences of robbery as well as unlawful wounding and sentenced to five years and two years imprisonment respectively. He has appealed against both convictions as well as the attendant sentences. The state does not support the conviction on the charge of robbery and has urged this court to set it aside for lacking any basis on the evidence on the record. | have had occasion to examine the said record and the first thing to note is that the observations of the state are correct. At the most, it would appear that the charges arose from the very same facts; this court is unable to appreciate how the appellant could be penalised twice for the same incident. In the premises therefore, without much further ado my court quashes the conviction for robbery and sets aside the corresponding five year sentence imposed by the magistrate on Chosadziwa Mpotandevu. As regards the conviction for unlawful wounding it is the considered opinion of this court that the same is not safe and must also be quashed. According to the 1 case of Rep-v-Chikakuda and others [1997]2 MLR 288 (HC) a denial statement, just like a confession statement, should be accepted into evidence and considered together with other pieces of evidence against an accused. !t was the opinion of Justice Mwaungulu (which | endorse fully) that such a statement must not be excluded simply because it did not advance the case against the suspect at trial; such an approach would show a failure on the part of the prosecution to place before the trial court all relevant evidence, including material that might be exculpatory of the suspect. In the present scenario the appellant explained that he was present at the scene of the crime but that in fact he had not brandished the weapon used to inflict the injury. In fact, it was his assertion that he had been responsible for breaking up the assault; in his appeal he has argued that though he admitted the charge it was with some reservations. In this context it is significant to observe that when the prosecutor led the facts of the case the appellant’s caution statement was presented to the court. The details of that statement clearly disclose a factual situation that does not conform to an unequivocal admission of guilt. On this basis alone, the trial court should have entered a plea of not guilty in respect of Chosadziwa; unfortunately that did not happen and he has been incarcerated following his wrongful conviction on ig” May 2011. In other words this court has reached the conclusion that the trial court did not properly address its mind to the relevant legal requirements when processing a plea of guilty. My court accordingly quashes that conviction and sets aside the corresponding two year sentence forthwith. Conclusion Thus both convictions for robbery as well as unlawful wounding have been quashed and their attendant sentences set aside. In the result the appellant Chosadziwa Mpotandevu is hereby set at liberty forthwith unless lawfully detained for other disclosed reason. Made at Lilongwe this 8" day of August 2013. C. J. Kachale, PhD JUDGE