Chimaka v R (Criminal Appeal 35 of 2018) [2021] MWHC 387 (20 August 2021)

Hl Falah: ak } fa : Aedl CRIRTUAL REGISTRY 23 AUS 2021 FLO, Bn 109 ZGNMBA Recuee seeeteers meres Se ; —— a sects! i ‘ REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CRIMINAL APPEAL NUMBER 35 OF 2018 (Being Criminal Case No. 26 of 2017 before the SRM at Zomba BETWEEN DAVISON CHIMAKA Se sar dress WT oe tee oan dslucttp tina's’ be saint APPELLANT AND & ' THE REPUBLIC Set RE LES, : RESPONDENT Coram: . Honourable Justice Violet Palikena-Chipao Mr. B. Theu, Counsel for the Appellant Ms. B. Kumwenda, Senior State Advocate, Counsel for the Respondent Ms Nyirenda/Mr. Banda, Official Interpreter and Court Clerk JUDGMENT ON APPEAL The Appellant and other five suspects appeared before the Senior Resident Magistrate sitting at Zomba to answer charges of being found in possession of human tissue contrary to section 18 of the Anatomy Act; removing tissues from the body of a living person contrary to section 18(1) of the Anatomy Act; and conspiracy to commit a felony contrary to section 404 of the Penal Code. The Appellant was convicted of the offences of being found in possession of human tissue contrary to section 18(1)(f) of the Anatomy Act; and conspiracy to commit a felony contrary to section 404 of the Penal Code. The appellant appealed against the conviction only. At the time of lodging the Page 1 of 7. 4. the 2 applications for bail shall be finalised on 12" March 2020 without appearance of the parties but with the State filing and serving their response by 9" March 2020 and any response by the Appellant to be filed by 11" March 2020. The Court reconvened on 4" July, 2020 but Counsel for the Appellant was not present. The State indicated that they had filed their response and what was remaining was the appeal. The matter was adjourned and the Court indicated that it will review the file and deliver any outstanding ruling on 11" July, 2020. The Court reconvened on 20" July 2020 and it indicated that it was inclined to grant the prayer for extension of time within which to appeal and advised the Appellant to proceed with the appeal but the matter was adjourned to 24"" July 2020 as the State was not ready. The parties were asked to recreate the evidence of their part of evidence which was relied upon at trial. The State did not submit any evidence and the record does contain no explanation as to why the State did not comply with the Court’s direction. The Appellant on the other hand filed not a recreated copy of the defence evidence but a copy of the court record with all the defence evidence, APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL In the Applicant’s skeleton arguments filed on 14" January 2019, the 1 Applicant sought bail pending both appeal and further trial, and further an extension of the time within which to lodge his appeal against conviction. Counsel for the Appellant submitted that there is good cause for allowing the Appellant to lodge his appeal against conviction outside of the time prescribed for doing so because- 1. since his conviction, the applicant had had no legal representation until he retained counsel to advise him on the judgment and the prospects of appeal hence the delay to lodge the appeal; 2. the 1% Applicant’s conviction is unsafe on the evidence and the applicant has a right to appeal to seek further justice to challenge the conviction; 3. the period elapsed since the conviction does not stand as a good ground for barring him completely from pursuing an appeal; and 4. the State will suffer no demonstrable prejudice or harm if the appeal is admitted out of time. Accordingly, Counsel for the Appellant submitted that this Court should admit the Appellant’s appeal against his conviction for both possession of human tissue and conspiracy to commit a felony. Section 349(1),(2)} and (3) of the Criminal Procedure and Evidence Code (CPEC) requires that an intending applicant to lodge a notice of appeal within 10 days of judgment or otherwise 30 days of receiving the judgment. Section 349(4) of the CPEC permits that notwithstanding the time stipulations, the High Court may admit an appeal out of time for good cause. There was on the evidence on record good cause as to why the Appellant delayed in filing his appeal. It is clear form Page 3 of 7 to the requisite standard then the Court should confirm the conviction but reduce the sentence. The matter was then adjourned for ruling. DETERMINATION It is important to consider that in accordance with section 253(2) of the CP & EC, this Court can alter or reverse the finding of the lower court or even order a retrial. To arrive at its decision, the High Court must have recourse to the lower court record. In the case of Pryce v The Republic (1971 72) 6 ALR (Mal) 65 Skinner J as he was then outlined the approach to be taken on appeal as follows- ‘Im our opinion, the proper approach by the High court to an appeal on fact jrom a magistrate court is for the court to review the record of the evidence, to weigh conflicting evidence and to draw its own inferences. The court, in the words of Coghlan v Cumberland (3) [1598] 1 Ch. at 704; 705 78 L. T. at 540), must then make up its own mind, not disregarding it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment ts wrong”. On credibility of the witnesses, Skinner J (as he then was) went on went on to state as follows- "It is always important for the appellate court to know that the magistrates have lived with the case in the course of the trial and account should be taken of this factor. In making up its own mind the court must remember that it has neither seen nor heard the witnesses and that the view of the magistrate on credibility, whether stated in express terms or seen from the judgement by necessary inference, is entitled to great weight . .... A rehearing by the appellate court does not mean that the court looks at the record of evidence in isolation and makes up its own mind as if there were a trial on the record alone. It must take into account the other factors which we have referred to, and it must recognise that it is a position of disadvantage as against the magistrate who heard the case". The approach taken on appeal, calls into consideration the question of the missing lower court record. On the question of missing record of the lower court, this court found the decision of the Malawi Supreme Court of Appeal in the case of Chalera & Others v Republic very useful. This is what the Supreme Court of Appeal said after considering a number of authorities on the subject of missing court records- “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 court record missing and cannot be reconstructed. Where the missing part of the court record is not substantial, immaterial and inconsequential as would not result in miscarriage of justice, the appeal shall proceeded with and finally be determined. Where the missing part of the record is substantial, material and consequential, material and consequential, such that proceeding Page 50f7 should be a retrial of the Appellant by a competent court within 120 days of this Order. In the event of a conviction, the period that the Appellant has already spent in custody is to be taken into account. fo Pronounced in Court this ....+++ . day of August, 2021. (ve hp Violet Palikena-Chipao JUDGE Page 7 of 7