Island Nkhuwa v The People (HPA/84/1971) [1971] ZMHC 9 (30 August 1971)

ISLAND NKHUWA v THE PEOPLE (1971) ZR 134 (HC) HIGH COURT DOYLE CJ 30th AUGUST 1971 40 (HPA/84/1971) Flynote Evidence - Confession - Involuntary confession - Whether verbal or in writing - Procedure to be followed. Evidence - Admissibility - Statement wrongly admitted In evidence - Error 45 may be rectified where defendant gives evidence. 1971 ZR p135 DOYLE CJ Headnote The appellant was charged on two counts of stealing four gallons of Government diesel on two occasions. When evidence was given of the confession it was alleged that it was extorted by force. The trial magistrate did not hold a trial within trial and convicted the accused. Held: 5 (i) Where a confession is put in evidence by the prosecution and the defence raise the question of involuntariness, the practice of the courts is to have a trial within a trial and this applies whether or not the confession is verbal or in writing. (ii) If a statement is wrongly admitted in evidence, that error may 10 subsequently be rectified where the defendant gives evidence and his story is tested as to the involuntariness of the statement. Case cited: (1) Mambalino v The Queen 1962 R & N 507. Appellant in person. 15 Miss L P Chibesakunda, State Advocate, for the respondent. Judgment Doyle CJ: In this case the appellant was charged on two counts: they were of stealing four gallons of diesel worth K1.20 cash on two separate occasions. The facts were that he was in charge of Chinkuli Dam Project and in 20 charge of the diesel oil there. He met a man named Goodwin Banda in a bar and the appellant told him he had diesel oil for sale at his home. Banda agreed to buy diesel but he did not go to the appellant's home. He went to Chinkuli Dam where it must have been perfectly plain to all that it was Government diesel which was there. The appellant then 25 sent another employee of the Government to get the diesel, and that employee produced four gallons of diesel which he gave to Mr Banda. Mr Banda then paid the appellant K1.20. That happened twice. I would have thought that it was obvious to everyone there concerned that the appellant was selling Government diesel. It must have been plain to Mr 30 Banda that he was receiving Government diesel. I think he would have been very gullible if he thought the K1.20 was going to Government funds. The magistrate found that Mr Banda was not an accomplice. I am afraid I find this finding of fact quite impossible to accept. Similarly as regards the other Government employee who produced 35 the diesel and saw the payment, he must have known that it was Government diesel that was being handed over and he must have known that people in appellant's position are not allowed to sell Government diesel. I fully appreciate Miss Chibesakunda's point that he was a junior servant and that a junior servant does not like offending his senior, but that 40 unfortunately does not prevent the person from knowing that it was wrong. In my opinion the employee who supplied the diesel on the appellant's order was an accomplice. Yet again the magistrate found contrary to plain facts that he was not. On these two points the learned magistrate clearly misdirected himself. In addition to that, the appellant 45 1971 ZR p136 DOYLE CJ is supposed, when he was arrested, to have made a statement to a policeman which clearly was an admission of guilt; a confession. When the policeman gave evidence, he referred to that confession, and he was cross - examined on it to show the confession had been extorted by force 5 Where a confession is to be put in, in evidence by the prosecution and the defence raise the question of the involuntariness, the practice of the courts is to have a trial within a trial. I wish to make it clear to all magistrates that that applies whether or not the confession is verbal or in writing. It may be that magistrates consider that verbal confessions are not 10 subject to this rule; they are. That was a further misdirection and to my mind a fatal misdirection. Miss Chibesakunda has referred me to the case of Mambalino v The Queen (1). There it was explained that if a statement is wrongly admitted, that error may subsequently be rectified where the defendant gives evidence and his story is tested as to the 15 involuntariness of the statement. In this case the appellant did give evidence, but at no stage did the magistrate ask him any question, nor did he give evidence on the alleged beatings which extorted the confession. The learned magistrate did not therefore have before him the matter which he should have had in order 20 to decide whether that confession was voluntary or not. If he had, and decided the confession was admissible, it might well have cured the matter. However, he did not. It is plain that the failure to direct himself materially might have led to an injustice, and I cannot see how I can apply the proviso. The appeal is allowed and the conviction and sentence is quashed. 25 I think that if this case had been properly tried, the result would have been the same, but that is only my own view of it. I do not consider it proper in the face of such clear misdirections to apply the proviso and dismiss the appeal. I allow the appeal and I quash the conviction and sentence. The 30 only matter which then concerns me is as to whether or not I should order a re-trial. The amounts in this case were really fairly small, in all K2.40. If I had dismissed the appeal I would have altered the sentence. The appellant has been in custody for almost seven months. I do not think justice would be served by having a re-trial. I do not order a re 35 trial and the appellant is acquitted. Appeal allowed