Joel Bwalya v The People (Appeal No. 94 of 1970) [1971] ZMCA 5 (16 March 1971)

■ ■ ■ JOEL BWALYA v THE PEOPLE (1971) ZR 31 (CA) COURT OF APPEAL PICKETT JP, MAGNUS AND GARDNER JJA 16TH MARCH 1971 (Appeal No. 94 of 1970) Flynote I Evidence 20- Trial judge's observations - Accused not obliged to disclose defence to arresting officer - When misdirection. Headnote The appellant was charged with and convicted of aggravated robbery on the allegation of the complainant that she was deprived of K6 while two persons in his company stood behind her. At the trial the appellant 25 said that at the time of arrest he was charged with cheating. Referring to this the trial judge observed: "If the accused's defence is genuine, he would certainly have made mention of it . . . when he was first arrested." Held: It is misdirection for a trial judge to say if accused's defence is 30 genuine, he would have certainly made mention of it to the arresting officer at the time of arrest. When a person is arrested and cautioned, it is the law that he is not obliged to say anything unless he wishes to do so. Judgment Pickett JP: delivered the judgment of the court: In this 35 case the appellant is alleged to have got hold of the complainant by the front of her dress near the neck, and said if she shouted he would kill her. He was then said to have robbed her of K6 which she had in a handkerchief in her brassiere. The only reason the appellant was charged and convicted of 40 aggravated robbery was because he was said to have been in the company of two other men who allegedly stood behind the complainant, but did not do or say anything else. Now at the close of the prosecution case defence counsel submitted no case to answer, but the trial judge, referring to these two men, said, "The presumption raised by the evidence is that they 45 stood behind her to prevent her running away. It is a presumption ■ PICKETT JP which I concede is rebuttable but there has been no attempt by way of cross - examination to rebut this evidence." With respect to the trial judge it is not a presumption at all but merely an inference that he made on the evidence as a result of I which he held that the appellant and the 5 other two persons acted in concert. There is an odd feature in that PW1 in her evidence, on which the trial judge strongly relied, deposed that three weeks after the alleged robbery she again met the appellant at the railway station and he showed her money telling her, "This is the money I stole I from you." 10 On the following morning she said she saw him again at the Lusaka Railway Station. This time her mother was with her, and according to her she shouted "Thief, thief!", and the appellant ran away but was chased and caught some distance away at the Kafue roundabout. This piece of evidence was supported by the evidence of her mother, but was 15 not corroborated by PW3, whom we may regard as a completely independent witness. This police officer deposed that he saw a group of people in Cairo Road, and when he approached them he found the appellant and PW1 (the complainant) quarrelling. PW3 said he arrested the appellant for aggravated robbery, whilst the appellant stated he was 20 first charged with cheating. Finally in his judgment the learned trial judge observed, "If accused's defence is genuine, he would certainly have made mention of it, however brief, to PW3 when he was arrested." In our view this comment amounted to misdirection on the part of the trial judge because, of course, when person is arrested and cautioned, 25 it is the law that he is not obliged to say anything unless he wishes to do so. Obviously it is most unfair to an accused person for a judge to make an observation of this nature. 1971 ZR p32 ■ ■ ■ ■ In all the circumstances of this case we feel that this conviction cannot be allowed to stand. Indeed it is not supported by the learned 30 State Advocate. We therefore quash the conviction and sentence and acquit the appellant. Appeal allowed ■