Boma v R (Criminal Appeal 3 of 2021) [2021] MWHC 391 (25 October 2021)

ir REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CRIMINAL APPEAL NUMBER 3 OF 2021 (Being Criminal Case No. 272 of 2018 before the FGM at Liwonde) BETWEEN FWAIBU BOMA —_ aaseanessnesscsnsenerscescscesnscunsvanssssecasarncensnssussnsescnsoeas APPELLANT AND THE REPUBLIC panes sseaccscnsancesnepssnstsecsesacssessaaraesnsetssersnscscecesereseeesere RESPONDENT Coram: Honourable Justice Violet Palikena-Chipao Mr. |. Theu, Counsel for the Appellant Mr. Msume, Senior State Advocate, Counsel for the Respondent Ms A. Kazambwe, Official interpreter and Court Clerk JUDGMENT ON APPEAL The Appellant, Twaibu Boma appeared before the First Grade Magistrate sitting at Liwonde to answer charge of defilement contrary to section 138(1) of the Penal Code. He was convicted and sentenced to 120 months (10 years) imprisonment with hard labour on 12** October 2018. The conviction was confirmed by the High Court on 9" April, 2019 and the sentence was reduced to Page 1 of 7 When the Appellant appeared in court for plea, he admitted having had sex with the complainant but he said that he did not know how old the girl was. He however said that he would accept if the girls is 14years old. In view of his response, the lower court rightly entered a plea of not guilty and the matter proceeded to full trial. The compiainant, her mother and the Investigator testified and the Appellant raised no issue as to the age of the girl. In his defence, he acknowledged that he feil in love the complainant, had been having sex with her and that he was responsible for her pregnancy. He also said that he had indicated to the Complainant’s mother that he would marry her and that her mother was excited. The Appellant’s two witnesses also confirmed that the Appellant accepted responsibility for the pregnancy thereby admitting that he had carnal knowledge of the complainant and went further to say that the complainant’s side and the Appellant’s side agreed that the Appellant would marry the complainant. In their evidence in chief the Appellant and his witnesses did not raise the issue of age of the complainant. When the Appellant and his witnesses were asked in cross examination, they said that they did not know the age but that if her mother said she is 14, they would agree. There is no suggestion on the evidence that the Appellant thought that the girl was 16 years old or above. He just did not know the age of the victim. It does not appear that for any reason the Appeilant, had any belief {reasonable or otherwise) that the girl was of 16 years of age or above. The court did not alert him that as to the statutory defence provided for in the proviso to section 138(1) of the Penal Code. The issue that the Appellant raises in this appeal is that the court should have alerted him of the statutory defence in section 138 (1) of the Penal Code and that by not so alerting him, the court occasioned an error of law which he argues that on the authority of the case of Yamikani Paul v. Republic Criminal Appeal No. 6/2017 renders the conviction faulty. Section 138 of the Penal Code provides as follows; (1) Any person who unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of a felony and shail be liable te imprisonment for life, with or without corporal punishment. (2) Any person who attempts to have unlawful carnal knowledge of any girl under the age of thirteen years shall be guilty of felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment: Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court, jury or assessors before whom the charge Page 3 of 7 as the Appellant wes not represented, it was imperative for the court to inquire how the belief aros2. The court went further to find that an injustice was occasioned and that the Appellant was not accorded due explanation of the defence as an unrepresented accused person and that the trial was thereby rendered unfair due to the irregularity. Interestingly, just as was the case in the Yamikani Paul v Republic Case, despite the court’s finding that trial was unfair and that the error cannot be cured by secticn 5 of the CP & EC, the court went further to uphold the conviction but reduced the sentence from 14 to 8 years. The court’s basis for upholding the conviction was that the Appellant knew that age of the victim was crucial and that is why he said the victim was 16 yet he did not substantiate why he thought the victim was of the age of 16. By so holding, the court seems ‘o iave proceeded on the understanding that the Appellant did not satisfy the court that Ke he. easonable but mistaken belief that the gir] was 16 year or above to bring into operatic ‘| 4 statutory defence. The {Respondent} also cited the case of Yona Kamowa v. Reublic Criminal Appeal No. 12 of 2c question was raised in the Yona Kamowa case as to how the statutory defence should lied and this is what the court said; What one observes is that the Appellant seeks the application of the statutory defence because in his belief the girl was more than 16 years of age. The question is how is the statutory defence applied? The operative words are, ‘if it shall be made to appear to the court...that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age sixteen years.’ This means that the court must be satisfied that the offender has provided in the mind of the court good reason to believe that the girl was above sixteen years old. We have to find out how the offender satisfied or convinced the court about his belief of the girl's age The court went further to state as follows; However, under the proviso, a defence is created if circumstances are shown by the offender to the satisfaction of the court that the offender had reasonable cause to believe and did believe that the girl was above the age of sixteen. This will only arise after the prosecution has laid down its case or the two important ingredients of the offence stated above. It is clear in the present case that the lower court did not alert the Appellant of the existence of the statutory defence under section 138(1) of the Penal Code. The approach taken in the Yamikani Paul v. Republic case and Joseph Mitambo v. Republic case, to uphold the convictions and simply tamper with the sentences, do not seem in the mind of this court agree with the conclusion that the court drew in those cases which was to the effect that the absence of the alert was an irregularity which could not cured under section 5 of the CP & EC. Page 5 of 7 alert the accused person of this statutory defence in every defilement case during plea taking stage is more of his own wish than it is a requirement of the law. We in the consequence find no merit in the Appellants second ground of appeal and we dismiss it.’ The Yamikani Letasi Case, settles the position. The argument advanced by the Appellant in the present case is not supported by the position settled by the highest court of the land. Whilst the Yamikani Letasi case, recognises that in rare cases the need for such an alert may arise, the circumstances in the present case do not qualify the present case for such a rare case. Besides, as already noted above at no point did the Appellant raise the suggestion that he operated under the mistaken belief that the girl was of 16 years or above. In view of the foregoing, the ground of appeal fails and the appeal is dismissed in its entirety. at Pronounced in Open Court this ......... day of October, 2021. y pyr ry tlt Violet Palikena-Chipao JUDGE Page 7 of 7