Manuel & 14 others. v Republic (Criminal Appeal 17 of 2017) [2017] MWHC 92 (12 June 2017)

1 JUDICIARY IN THE HIGH COURT OF MALA WI REGISTRY PRINCIPAL CRIMINAL DIVISION Criminal Appeal No. 17 of2017 [being criminal (eCMS 5977 of2017) cause no. 1745 of 2016, CRM, Blantyre Magistrates' Court] In the matter between: JOSE MANUEL SIMAO FORTULNATO JULIOFWAMBAUONE LOTI FULA YITONI MFUMUKIDI HERMENGILDO SAMUEL JUSTINE LAULI JULIAO MANGIRA AKIMU STEPHANO ZAKEYO ALNANZA ORASI DOMINGO MONERA ALAMIDA BERNADO LUCAS KINGSLEY BANDA MACNIWARD STEVEN and THE REPUBLIC 1st APPLICANT/ 2nd APPLICANT/ 3rd APPLICANT/ 4th APPLICANT/ 5th APPLICANT/ 6th APPLICANT/ 7th APPLICANT/ gth APPLICANT/ 9th APPLICANT/ 10th APPLICANT/ 11th APPLICANT/ 12th APPLICANT/ 13th APPLICANT/ 14th APPLICANT/ 15th APPLICANT/ APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT RESPONDENT RULING nyaKaunda Kamanga, J. Procedure and bail pending of the same and skeletal 355 of the Criminal in support filed this application for stay of forfeiture and Evidence The appellants under section the affidavit 2017. The record of the case shows that on the same date that the abovementioned mentioned documents were brought applicants, Joe and Max Chambers, following with for the to court the legal practitioners also filed in the High Court of Malawi the in accordance Code. The application, were filed on gth May a notice of appeal, documents: arguments a petition of appeal appeal, 1-f IGH COURT Ll8r-<ARY section support 350 of the CP and EC, a notice on sentence. of appeal of hearing and skeletal arguments in The brief facts in this criminal matter and are that the applicants herein, following at Blantyre Prison, by the Chief Resident not to appeal, for various offences and sentencing are incarcerated their convictions under the Immigration Act, National Act and the Customs and Excise Act. In the subordinate on 35 accused persons others who have elected Chichiri, Magistrate Wildlife charges were proffered 2016 after a group of people had entered a protected National Park, without authority 2017 the offenders custodial term for some of the offenders, months' imprisonment, which was to operate arrest, the 2nd November 2016. This court has to determine whether forfeiture should be stayed pending appeal. the applicants, was 18 with effect from their date of the order for should be released were sentenced to various punishments. The maximum including area, namely Lengwe activities. On 2nd May under criminal cause no. 1745 of and committed criminal' the applicants Parks and court Criminal and whether on bail In support of the present application which was sworn by the 15 applicants the applicants on 5th May 2017. It is depose? in have filed a joint affidavit paragraph 3 of the joint affidavit that 'the trial magistr�te custodial sentences) assess failed to impose fines on us (and instead and it was difficult because the fines'. to settle and capabilities we are 'aliens' our capacity for him to ordered they are 'all capable the applicants allege, goods, machinery submit that The applicants and 7 of the said affidavit the property, control unnamed third parties. chances equipment, of Jose Manuel do not of success. of paying fines.' but do not approve, and vehicles that 'some of and in the custody but that they belong to that their appeal has very high belong to Jose Manuel' assert The applicants In paragraphs On 3 pt May 2017 the pt applicant, swore a supplementary Jose Manuel, for stay of forfeiture but does not prove, order. Mr. Manuel that the government of the application affidavit, in support in the supplementary changed to section affidavit alleges took 'possession, ownership 149(3) his car contrary He further alleges lately started rendered to depreciate.' and the same has been involved The applicants of the Criminal and fixed a government number plate' on Code. around and Evidence Procedure is 'being and that its value 'has driven in an accident' contend that the appeal herein will be be should the order of forfeiture nugatory and become predetermined but does not prove that the vehicle immediately. enforced parked and the keys be kept by the Registrar determination of the appeal. The prayer of the 1st applicant is that the motor vehicle be of the High Court until after the . matter. There are two grounds of appeal in this criminal The first ground of of appeal is that the applicants are dissatisfied with in the petition could have imposed of imprisonment for being manifestly appeal raised of the sentence magistrate On 30th May 2017 the appellants their conviction under count 4. Their contention on this ground is that the trial magistrate erred in law and fact to order that motor vehicles are weapons in terms of was wrong. ground of appeal challenging the National Parks a a fine and that the order for forfeiture filed an additional . nd Wildlife Act and equipment excessive when the The applicants urge the court to uphold the spirit of the case of Jamadar v argue that an appeal automatically is of perishable operates as a stay of noting The applicants with five months to serve on their sentences of nature. more freely particularly its discretion 1 by exercising order unless the property forfeiture that they are remaining imprisonment Republic there is a likelihood heard, The applicants exist before an appellant rely on the case of Pandiker v Republic appeal submit that there is a very likelihood of success granting of bail pending appeal. considered and determined, acknowledge being successful can be held to be a special on bail pending appeal. can be liberated that exceptional of the appeal 2 to assert that a strong the convict that the sentence is unfair and that by the time the appeal is circumstance. The applicants will have served the full sentence. circumstances have to be shown to The applicants of the probability necessitating the in a case where that where a fine and custodial among other According are misguided in stating to the affidavit in opposition that the applicants the courts that was sworn to the application by Dr. Steven Kayuni and filed on 9th June 2017, the State contends, issues, sentence are provided the view that the applicants Mozambique who entered the country defeat the interests of justice. The respondents pending appeal arguing is one which has exceptional pending appeal. In support conviction is at the d always impose a fine. The State is also of of bail, bolt and for bail circumstances warranting of their argument that admission to bail after it fit,' the r rt where it 'deems should being Mazombican that the applicants or unusual would, if granted oppose the application iscretion of the cou have failed to demonstrate nationals or residents illegally the grant of bail that this case espondents 1 Criminal 2 [1971-72] Application ALR Mal 208. no. 8 of 1975 (unreported). v Republic; re or post-c and others 5 The State submits y the decisions in Yamikani Letasi v R 4 and 3 Suleman v Republic that this court should not be epublic6 and Kenneth K epublic7 which postulate that b onviction as long as the court i r Assistant Chief State rely on the cases of Kamaliza Mekiseni and others v Republic. persuaded b umuwa, Lameck John and Brighton Makopolo v R ail is a ,- s of the view right whether it made p Advocate that it is in the interests of justice. The Senio at the advance the following reasons for the court to dismiss the application: th have to be overturned; that the applicants convictions were safe and are unlikely no place of ab same illegal means and that the a sentencing are w the respondent prays that the c appeal. ourt denies the applicants' plea for bail pending rong. The State submits that bail pending a f the principles of ppeal is not a r ode in the country, they came pplicants understanding o illegally and can go ba ck through the ight and In regard to the application for stay of forfeiture order the State is of the view that there was no need for an application there is an automatic stay of the same. for stay of the forfeiture order as The constituti pending appeal onal right to be released from detention and admi ssion to bail grants of the Constitution v Republic 42(2)(e) of justice law, section applicable require otherwise'. bail, unless th� interests person a constitutional The case of Zgambo v Republic with or right 'to be released from detention 8 affirms that the paramount 9 outlines In terms of the general an accused without Kamwangala Constitution. which should guide the courts and affirmed in the case of Phiri and another 12 and Zgambo v Republic another v Republic of the Constitution has not given an absolute the right to the court which must refuse bail if it is satisfied to the case of Kenneth Kumuwa, Lameck justice otherwise 15 the word 'accused' John and Brighton Makopolo v R v Republic. 13 make it clear that 'sec right to bail. The section 11 The cases of Phiri and e) 0 These principles in bail applications. .14 According law on bail is the require' tion 42(2)( still reserves of that the interests The case of Kettie were repeated epublic some of the principles no. 14 of 2015 (unreport March 2016). 2017) Appeal no. 13 of 2016 (unreported)(l l January ed)(22 Bail Application no. 6of2013 (unreported Case no. l 07of2012 (unreported 2014) at 5. 28 January 7 August 2013 ). 3 [1993] 16(1) MLR 196. 4 [2004] MLR 398 (SCA). 5 MSCA Criminal Cause 6 MSCA Criminal 7 High Court Principal MSCA Misc criminal [ 1999] MLR 405 (SCA). 10 [1999] MLR 405 (SCA) at 407-408. 11 [2000-2001] 12 [2000-200 Registry, appeal I] MLR 369 (SCA) at 370-37 l. MLR 369 (SCA) at 371-372. [ 1999] MLR 405 (SCA). [ 1999] MLR 405 (SCA) at 409. 15 High Court Principal Registry, Bail Application Case no. 107 of2012 (unreported 7 August 2013) 'includes sentenced and sentenced in case of Kenneth in section 42(2) of the Constitution of a crime'. However, convicted decision Repub/ic16 that bail is a right and that 'the interests for all bail applications, review of decisions in the case of Emmanuel Uche v R of court of first instances' epublic.17 of justice before and after conviction, the responden Kumuwa, Lameck John and Brighton has been considered offenders, ts submit that the v Makopolo test is the dominant that is during appeal or those as erroneous developed by the courts in considering have been codified under s 3 of the Bail (Guidelines ions to applicat ) factors and other matters, constituting to grant or refuse bail a court shall be guided by the on Bail, Guidelines to the 4 of part II of the Schedule in part II of the Schedule.19 Paragraph The key principles from detention be released Act. 18 In considering whether uniform principles, specified Bail (Guidelines) consider in deciding on bail. for bail pending appeal provisions the relevant and case law. applicable rules most of the factors pertain reliance is still Act provide whether under the Criminal Although for some of the questions which a court should or not an accused should be released detention, to be made to the guidelines Procedure to pre-trial and Evidence Code, as well as to from detention in applications Section 355(1) of the Criminal Procedure and Evidence stay of execution and admission to bail pending appeal. Code provides for It stipulates that of intention to this Code, neither 349 nor a, petition a notice of appeal of any sentence 'Subject section stay of execution passed the sentence any such sentence if the appellant without is in custody pending or order be stayed sureties, or order, or made the order, or pending but the subordinate the High Court, the hearing that he may be released and of an appeal on bail, with or to appeal given 350 shall operate court which may order that such hearing.' under section under as a The Supreme Court of Appeal decision and others be presumed does not, any more, have the right to be released, who has been convicted in the case of Mekiseni cannot to with 21 admission to bail v Republic and others of the court where it 'deems it fit' in bail.' and therefore 20 holds that 'a person According is at the discretion v Republic be innocent or without after conviction exceptional bail pending holds that when considering should the matter and the likelihood have due regard to Mekiseni and unusual to the record of success of the case, the grounds of appeal of the appeal when it is finally heard filed in and circumstances. The case of Chimbanga appeal v Republic the court seized with the matter Bail Application Case no. 107 of2012 (unreported 7 August 2013) 16 High Court Principal Appeal no. 17 Criminal 18 Act 8 of2000, cap 8:05 19 Section 3 of the Bail (Guidelines) of the Laws of Malawi. Act. Registry, 110 of 2015. MSCA Criminal 21 MSCA Criminal 22 MSCA Criminal March 2016). Cause no. 14 of2015 (unreported)(22 March 2016). Cause no. 14 of2015 (unreported)(22 Cause no. 1 of2017 (unreported). ' determined by the appellate court. and Yamikani Letasi v Republic application in public justice. and that release The cases Dzole v Republic of Christopher 24 discuss the procedure and practice for for bail pending appeal and hold that bail applications from detention on bail can only be in the interests should be made of Disposal of the matter of the affidavit evidence that were filed by the tion for bail pending appeal as well as the in support of the applica After a careful consideration applicants skeletal arguments the counsel for the applicants court notes that in the present and sufficient offenders on bail pending appeal. agreement unusual circumstances that the applicants reasons and on seriously considering the submissions and Senior Assistan application the court is dealing must exist before such offenders made by both this with convicted can be released t Chief State Advocate, Indeed the legal practitioners are required to establish exist such as to merit the granting are in of the parties that exceptional and appeal. of bail pending As has already been noted it is the opinion of this court that when it comes of whether, circumstances must still advance in the interests of justice, of applications for admission to bail pending appeal the to the and factors that are integral For instance bail should be granted. to consideration applicants question under the unusual bail pending appeal for bail applications succeed; where there is a risk that the sentence will be served by the time the appeal is heard and where the grounds and the Supreme Court of Appeal has approved that: prima facie the appeal is likely to the High Court has granted and exceptional wh�re it appears circumstances are arguable. such orders of appeal test, After seriously has put across as informing arguments advanced follows: considering the factors which the counsel for the applicants the exceptional and unusual circumstances and the ·court finds as by the State in light of the applicable law this 1. That the assertion this court to decline and the evidence illegally that the applicants on record have no place of abode in this of the case that they entered the matter of this criminal are some of the circumstances to bail country country that have persuaded pending appeal. proceedings critical Act. to the Bail (Guidelines) to are likely the applicants' grounds whether this court finds that the applicants have raised factual and legal such as, by the High Court on merits, are some procedures 4 of part II of the Schedule of an accused of extradition the applicants to evade criminal succeed, issues and the possibility that need to be resolved The likelihood under paragraph to consider admitting of appeal factors 2. In considering 23 MSCA Criminal 24 MSCA Criminal Appeal no. 14 of 2016 (unreported)(l 2017) Appeal no. 13 of2016 (unreported)(l l'h January 2017). l January those relating to assess premature to the propriety the means of the convicts and prejudicial and the alleged It would be during sentencing. at this point in of the convictions to both parties for this court, failure time, to delve into the grounds of appeal and speculate on the outcome that the applicants as appellants of appeal. of the issues grounds after hearing appeal it is the considered of all the grounds success the appeal. The court will have to consider a perusal However, from in their have raised these and determine of of the grounds of view of this court that the likelihood of appeal are dim. Having considered court is of the general on the factors that are advanced can be regarded pending application sufficient factors on bail pending application as constit appeal to persuade appeal. for bail pending appeal. the application as a whole in the present view that each case is considered on its merits criminal this matter depending and which generally bail In the present or unusual of justice. uting the interests this court finds that the applicants this court and deem it fit to release have not advanced of the applicants This court exercises its discretion and dismisses the as exceptional not dispute Since the parties do 149(3) order following that the motor vehicle order and section of the forfeiture the applicants Court until after the determination the filing of the notice of appeal, in issue be under the Registrar is granted. of the appeal the prayei; by High of the of the CP and EC is clear that there cannot be execution the application for stay of the forfeiture The criminal matter is set down for hearing 4th July 2017 at 10 am in open court. arguments of appeal, cross skeletal appeal, of appeal The parties and cross appeal should file and serve on and any other supplementary Tuesday grounds documents by 23rd June 2017. The Registrar this criminal matter must issue and serve a prqduction for hearing in readiness of the appeal and cross appeal. order for· all convicts in Pronounced in open court this 14th day of June 2017 at Chichiri, Blantyre �Lj� nyakaunda Kamanga Doroth} � JUDGE case information Date of hearing Mr. J. Kamkwasi Dr. S. Kayuni Mr. A. Ng'ambi 12th June 2017 Counsel Senior for the respondent Court Clerk Senior Assistant for the appellants/ applicants Chief State Advocate,