Mbewe v State (Criminal Appeal 113 of 2018) [2020] MWHCCrim 21 (18 September 2020)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CRIMINAL APPEAL NO. 113 OF 2018 Being Criminal Case No. 116 of 2018 in the FRM’s Court Sitting at Rumphi JAMES MBEWE VERSUS THE STATE CORAM: HON. JUSTICE T. R. LIGOWE W. Nkosi of Counsel for the State G. Kadzipatike of Counsel for the Appellant G. Msukwa, Official Interpreter J. Chirwa, Court Reporter JUDGMENT Ligowe J l This is an appeal by James Mbewe against his conviction and sentence for the offence of indecent assault contrary to section 137 (1) of the Penal Code by the First Grade Magistrate at Rumphi. He was sentenced to imprisonment for five years with hard labour. It was alleged in the lower court that James Mbewe on 9% May 2017 at Kazuni in Mzimba unlawfully and indecently assaulted a girl. Her name will be withheld for the sake of her rights as a child. In giving her testimony the court started with examining her to see if she could give evidence on oath. She said she was 14 years old and was in standard 3 at Magogo Primary School where she scored position 16 the previous term. Upon this the court ruled that she should give evidence on oath as she was of sufficient intelligence. She testified that one day she passed by the appellant’s house to drink water when coming from a football match. She found the appellant alone outside the house and he allowed her in to drink the water. As she came out of the house he grabbed her by the right hand and pulled her in up to his bedroom. He undressed her and laid her down. He lied on her top and she said, “He took his thing and put it on my thing.” She shouted for help but the man closed her mouth. He then let her go away but she did not reveal it to anybody because she was afraid of him. It was four days later that she informed her mother. The mother’s testimony was that about a month before the date she testified, and that was on 5" June 2018, her daughter had been complaining of stomach pains. She took her to Thinduwike Health Centre but it didn’t assist much. She then asked women to ask her why she kept on crying. Upon asking her, the women reported that she had been defiled by the appellant. When she asked her daughter about it, she confirmed. The girl was taken to Rumphi District Hospital for examination on 9" May 2018. Ruth Munthali, a Senior Medical Assistant, is the one who examined her. Her evidence is that the girl was alleged to have been defiled in February 2018. She found nothing to prove penetration. The appellant’s defence was that the day he was arrested, 17" May 2018, the girl and her mother came to his house in the company of four members of the Community Policing Forum. The girl said that the appellant had defiled her on a Monday when his wife had gone to Ekwendeni. He denied knowledge of it, but that his wife went to Ekwendeni on 9'* February 2018. In the evening that day, the girl came with his sister-in-law (of the same age) to chat. The girls slept at his house that night and when they woke up in the morning they went to school. On the allegations of the defilement, he was told the gitl’s mother used an herbalist and that is the one who said she had been defiled. In his judgment, the First Grade Magistrate found that the girl had indeed been indecently assaulted because her own evidence did not indicate penetration as she said “he put his thing on her thing.” It was not surprising therefore that the medical examination found no sign of penetration. The Magistrate further said that he strongly believed the girl’s stomach pains were a result of the appellant lying on top of her during the indecent assault. He may have failed to penetrate due to her immaturity. So the Magistrate found the girl’s mother’s evidence and the medical report corroborative to the girl’s evidence. The main ground against the conviction is that the lower court had not properly examined the girl as required by the proviso under section 6 (1) of the Oaths, Affirmations and Declarations Act, and so he convicted the appellant on uncorroborated evidence of an immature witness. Section 6 (1) of the Oaths, Affirmations and Declarations Act states:- (1) Before giving evidence in a judicial proceeding, a witness shall make the oath or affirmation set out in the Second Schedule. The court or a person authorized by law or by the court in that behalf, shall ask such witness if he believes in Almighty God and, if so, whether he agrees to make the oath. If he answers both questions affirmatively he shall be required by such court or person authorized, as the case may be, to make the oath holding his right hand uplifted. In all other cases he shall be required by the court or person authorized to make the affirmation: Provided however that where, in any proceedings against a person for any offence, any person of immature age, before the court as a witness, does not in the opinion of the court understand the nature of either an oath or an affirmation the court may receive his evidence, though not given on oath or affirmation, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence. (2) Where evidence is received by a court in accordance with the proviso to subsection (1), the accused shall not be liable to be convicted on such evidence unless it is corroborated by some other material evidence implicating him. For what the lower court should have done in ascertaining whether the girl understood the nature of an oath or affirmation, Counsel refers to the statement of Kumange J in Rep vy. Banda [1995] 1 MLR 202: - “The words of interest in the section above captioned are: ‘If in the opinion of the court the person understands the nature of either oath or affirmation.’ These words have over the years been treated with some degree of Judicial sanctity with the result that, in practice, before the court records a statement from a child (i.e. immature person) it puts to that child questions intended to inform the court whether that child appreciates or understands the virtues of taking an oath before testifying. This practice often wrought wonders as at times it shows that the child does or does not know who to fear. An oath is intended to see if the child knows the universal avenger of non-penitent persons, God. To achieve that objective the practice is that a voir dire has to be administered to the child. When convinced that the child knows the dangers of telling lies then the evidence by that young person has to be recorded. Every Magistrate of any class knows or ought to know the above procedure. They also know that on confirmation and on appeal the higher court will depend on the accurate recordings made in the lower court. If nothing is shown as having been done in the lower court, there is no way the higher bench can assume all to have been correctly and orderly done. What is missing from the record is taken to mean an omission in the court below. This is exactly my opinion as judged from the record before me. Although the learned Magistrate knew the procedure regarding the need for voir dire, he just swore the two children in and relied upon their evidence as if they were mature witnesses. This is misadministration of justice.” 1] 12 13 14 That a voir dire is meant to decide whether the witness appreciates the nature of the oath or appreciates the duty to tell the truth to the court, was also held in Rep. v. Zobvuta [1994] MLR 317. | _ —— _ fet Of course the voir dire the Magistrate administered to the girl in this case did to go as far as establishing whether she understood the nature of an oath or affirmation. But when he found that she was 14 years old and in standard three at school, the Magistrate was satisfied that she was of sufficient intelligence and she could take oath. How old is a person of immature age? The Oaths, Affirmations and Declarations Act does not define this term. The closest I could get is section 14 of the Penal Code. The side note refers to the provision as providing for immature age, and the provision states: - “A person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission, A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.” The vior dire under section 6 (1) of the Oaths, Affirmations and Declarations Act is about establishing whether the person of immature age understands the nature of an oath or affirmation. The oath or the affirmation is an undertaking that the evidence the witness shall give shall be the truth, the whole truth and nothing but the truth. Under section 10] of the Penal Code, any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, shall be guilty of the misdemeanour termed perjury. In accordance with section 14 of the Penal Code, a person under the age of 12 is immature to be criminally 15 16 responsible for perjury unless proved to have had the capacity to know he or she ought not to give false testimony. An oath or affirmation taken by a person at that age would be such proof. In view of this, it is not wrong in my view, to suggest that 12 years is the cut off point for an immature age. Anyone above 12 should therefore be considered mature unless proved otherwise. At the age of 14 therefore, the girl in this case was mature enough to give evidence on oath. At that age she would be responsible for perjury without need to prove that she had the capacity to know she ought not to give false testimony. I therefore find no fault that the Magistrate did not proceed to determine whether she understood the nature of an oath or affirmation after he established she was 14. The Magistrate perfectly made her take the oath. And so, her testimony was not subject to corroboration as required under section 6 (2) of the Oaths, Affirmations and Declarations Act. The appellant’s other ground for the appeal is that the conviction is against the weight of the evidence. Counsel for the appellant contends in his skeleton arguments that the lower court misdirected itself in finding that the girl’s mother’s evidence regarding the cause of her stomach-ache and the medical examination report corroborated the gitl’s evidence. Counsel contends that the girl was asked by the women about four weeks after the event, It was conjecture after four weeks for the court to conclude that the stomach pains were a result of the appellant lying on top of the girl. Relying on Kagwa v. Rep [1991] 14 MLR 138 and Tinanzari v R (1964-66 ALR (Mal) 184 Counsel argues that corroborative evidence has to be independent evidence tending to show that the crime has been committed and has been committed by the accused person. The mother’s evidence is not independent of the girl’s evidence and the medical evidence does not show that indecent assault was committed and committed by the appellant. This argument is pertinent although I have held that the girl’s evidence did not require corroboration as a matter of law. Corroboration of the evidence of women and girls in sexual offence has for so many years been required as a matter of practice. In Banda v. Rep (1966-68) ALR Mal 336 and R vy. Kaluwa (1964-66) ALR Mal 356, it was held that the court has to warn itself of the dangers of convicting on the uncorroborated evidence of the woman or girl. Following this practice, it means in the present case, the Magistrate needed 17 18 corroborative evidence to convict the appellant, or to have warned himself if he were to convict on uncorroborated evidence of the girl. I agree with Counsel for the appellant that the mother’s evidence and the medical evidence did not qualify for corroboration. There was no corroborative evidence available in this case. Justice Kamwambe Kamwambe discussed the requirement for corroboration and warnings in sexual offences in Dyson Nzeru v. Rep Criminal Appeal No. 32 of 2018 (Principal Registry) (unreported), He said: - “The requirement of corroboration in rape or generally sexual offences with persons over 16 is a matter of practice which today is causing controversies. Critics say that it has lived its usefulness and they have good and compelling reasons to persuade courts not to rely on corroborating evidence unnecessarily. Why should a complainant woman require corroboration of her evidence in sexual offences only and not in other offences such as theft? It seems women were not trusted to tell the truth in sexual offences only and so corroboration practice was coined to labour women,” His Lordship then discussed the cases of Banda v. Rep (1966-68) ALR Mal 336 and Rv. Kaluwa (1964-66) ALR Mal 356 and proceeded to say: - “I wish to suggest that a court does not even need to warn itself of the danger so long as there is enough circumstantial evidence to satisfy the legal requirement of proof beyond reasonable doubt. The same case of Kaluwa said also that circumstantial evidence may amount to corroboration when this evidence is proved by witnesses other than the one requiring evidence. One may ask what this means. Because there is a practice of requiring corroborating evidence, Judge Cram wanted to marry such circumstantial evidence to corroboration to justify the practice of looking for corroboration evidence. But in my view, today we could be bold enough to ignore corroboration and merely consider if the circumstantial evidence suffices to secure a conviction. The same result will be obtained and the controversial approach of looking for corroboration will have been avoided. We are in a gender 19 20 21 22 sensitive era and therefore should do away with laws, practices and notions which seem biased in favour of one sex. Such practices tend to be discriminatory and likely to be unconstitutional if examined closely, F ortunately, this practice has not been challenged.” I concur with Justice Kamwambe and that is the approach I will take with this appeal. I have noted that the appellant was charged with committing the indecent assault on gih May 2017. The girl did not specify the date in her evidence, but that she informed her mother about it four days later. As the mother was testifying in court on 5" June 2018, she referred the incident as having occurred a month before. Ruth Munthatli, the Senior Medical Assistant, testified that the gitl was brought for examination to Rumphi District Hospital on 9"" May 2018. The medical examination report she exhibited mentions the date of the incident as 9" May 2018. The date stamp of the District Health Officer on it shows a date of 5" June 2018 cancelled and replaced with 18" April 2018, The appellant’s own evidence is that it was on 9" February 2018 when his wife was not at home. All this does not add up as to when the incident occurred and as to whether the evidence before the court was to prove the incident the appellant had been charged with. The standard of proof in criminal cases is proof beyond reasonable doubt. Justice Mwaungulu in Republic v Suleman and another [2004] MLR 283 (HC) interpreted this to mean “that the court must be certain that it is sure that the defendant is guilty of the offence charged.” In the present case, in view of the observations in the paragraph above, I am not certain that I am sure that the appellant is guilty of the offence charged. I acquit him and set aside the sentence. The appeal is allowed. Pronounced in open court at Rumphi this 18" day of September 2020.