R v Katsekera & Ors. (MSCA Civil Appeal 4 of 2006) [2007] MWSC 5 (14 June 2007)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CRIMINAL APPEAL NO. 4 OF 2006 (Being I{igh Court Cnmtnal Cause No. 260 of 2000) BETWEEN: HEIVRY KATStrKERA MOSES POFERA WYSON WALO PACFIIKAI'II MATEYU . MARTEN KUDYA APPELLAI{T FELIX FOSTER 1ST APPELLANT 2ND APPtrLLANT ... 3RD APPELLAI\T 4TH APPELLANT . STH .. 6TH APPELLANT -AND- TFIE REPUBLIC .. .. RESPONDENT BEFORE: THE HON. JUSTICE H. M. MTEGHA SC, JA THE HON. JUSTICE J. B. I{ALAILE SC, JA THE HON. JUSTICE A. S. E. MSOSA SC, JA E |.,*> 9l < fi<- x,-' i6.t-: iti m Chisama, Counsel for Appellants Mrs Phiri, Mbano, Philipo for the State Mr Se1eml1ni, Official Interpreter d;"\ \i-'\ .. -( "l cr} rc{ tJ &.t# (f C) 1'. -rf u. &. . C!. (n th i;. JUDGMENT I(ALAILE, SC, JA The six accused persons \ /ere convicted in the High Court sitting at Ntcheu u'ith the offence of murder contrary to section 209 of tire Pena-l Code (Cap. 7. Ol). The principal witness to this case was Ellena Katsekera u.ho was the wife to the first accused, Henry Katsekera. It rnras her evidence that on the night Witt5, Miandeni was murdered, her husbald came to her house during the night u'ith a bag full of weapons which included a panga knife and his shirt was blood stained. Whiist asleep he kept having nightmares. This evidence corroborates what her husband stated in his confession statement and what Pachikani Matel,u also stated in his confession statement to the poiice. Then there is the evidence of constable Kanyowa u'ho tendered a Panga knife rn'hich a-lso corroborates urhat was stated bv Katsekera and Mateyu in their confession statements. On 15th June 2007, this Court reserved its judgment with regard to Pachikani Mateyu rn'ho, &s stated earlier, was convicted of murder together rn'ith five others, namely, FIenry Katsekera, W1r5on Walo, Martin Kudya and Felix Foster. This Court quashed the conrrictions against the five co-accused persons on the grounds that their convictions could not stand because they did not adopt the confession statement made by Henry Katsekera rn'hich implicated them. Section 17 6 (21 of the CriminC Procedure and Evidence Code provides that no confession made by any person sha1l be admissibie as evidence against ani/ otirer person except to such ext.ent as that other person_ may adopt it as his own. The four co-accused did not adopt Katsekera's confession statement. Furthermore, the four raised the defence of alibi in their caution statements. Hourerrer, at the tria1, thev chose to exercise their right to remain silent pursuant to the provisions of section 42 (2) (iii) of the Constrtution. Since the four did not adopt the confession statement by Henry Katsekera urhich irnplicated them, \ /e quashed their convictions on 15Lh June, 2007. We should also indicate that according to Counsel for the State, Henry Katsekera died whilst in custody before his alrpeal \ ras heard bv this Court. We no\ r remain with one appellant, to rnrit, Pachikani Mateyu. The evidence impiicating him is the confession statement which ire made to the police. The injuries u'hich were inflicted on the deceased a,iso corroborate urhat is stated in the confession statement as r.rre1l as the post mortem report. At the trial hearing, the appeliant did not retract the confession statement and like the rest chose to remain silent. Counsel for the State cited a dictum by Skinner CJ. in the case of Republic - v - Nalivata 5 ALR Mal. 100 at 103 where he stated that "Since the enactment of section 176 of the Cnminal Procedure antd Euidence Code, it is no longer a correct approach to cortsider retracted confessions uith caution and in practice to seek corroboration of them; any confesslon maa noLU be taken into account if the Court ls satisfi"ed beyond reasona.ble doubt that it is materiallu tnte." Another useful Enelish authorit\r in this regard is sthe case of R.*:- V - Basker Ville [1916] 2 K. B. 658 at 667 wh.ere Lord Reading observed that "ettidence in con-oboration must be independent testimot'ty u-,h.ich affects tlte accused by connecting or tending to connect lt.in't, that ls, utLtich confi"nns in some material paft.icular not onlg the euidence tha.t tl'te cri"me has been committed, but also that the odsoner coffLmitted it." A11 in all, u'e are satisfied be1rs14 reasonable doubt that the appellant, Pachikanr Matelr-r. \^ras properly convicted of rnurder as chareed because his confession \^/as materiClv true. The conrriction has failed. is accordingly confirmed as the appeal DELMRED in Open Court tiris Blantyre. 15th day of June, 2OO7, at Signed: Signed: Signed: A. S. E. MSOSA. SC. JA