Chanthunya v S (Being Criminal Case No. 11 at the High Court of Malawi, Zomba Registry) [2021] MWHC 402 (14 July 2021)

IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CRIMINAL APPEAL NO. 1 OF 2021 [Being Criminal Case Number 11 of 2018 at the High Court of Malawi, Zomba Registry] BETWEEN MISOZI CHARLES CHANTHUNYA APPELLANT THE STATE CORAM: HON. HON. HON. HON. HON. HON. HON. AND RESPONDENT THE CHIEF JUSTICE A K C NYIRENDA SC, JUSTICE R R MZIKAMANDA SC, JA JUSTICE L P CHIKOPA SC, JA JUSTICE F E KAPANDA SC, JA JUSTICE J KATSALA JA JUSTICE | C KAMANGA JA JUSTICE M C C MKANDAWIRE JA MG Chipeta of Counsel for the Appellant Dr. Kayuni[DPP]/Malunda/Masanjala of Counsel for the State W Shaibu judicial Research Officer Masiyano[Ms.]/Minikwa[Mr.], Recording Officers H Chiusiwa, H.[Mrs.] Court Reporter JUDGMENT INTRODUCTION/BACKGROUND The appellant was charged and convicted in the Court below on three counts. First of the murder of Linda Gasa contrary to section 209 of the Penal Code [Cap 8:01] of the Laws of Malawi, second of Hindering Burial of a Dead Body contrary to section 131 of the Penal Code and thirdly of Perjury contrary to section 101 of the Penal Code. The particulars of the offences are as follows: 1. That Misozi Chanthunya on or about the 4" day of August 2010 at Monkey Bay in Mangochi District with malice aforethought caused the death of Linda Gasa. 2. That Misozi Chanthunya on or about the 4° day of August 2010 at Monkey Bay in Mangochi District unlawfully hindered the burial of the dead body of Linda Gasa. 3. That Misozi Chanthunya on or about the 17° day of August 2010 at Soche Police in Blantyre District knowingly gave false testimony touching on the missing of Linda Gasa which was material to the question of the murder of the said Linda Gasa. The appellant was found guilty on all counts and was sentenced to life imprisonment on the first count and 2 years each on the second and third counts. The sentences were to run concurrently. Being dissatisfied with both the convictions and the sentences the appellant appealed to this Court. We heard the appeal on July 14, 2021. We dismissed the appeals herein in their entirety. We now give our reasons therefor. GROUNDS OF APPEAL The appellant filed six grounds of appeal. They are reproduced verbatim. 1. The High Court erred in finding that circumstantial evidence proved beyond reasonable doubt that the Appellant caused the death of Linda Gasa. The Court’s judgment cannot be supported having regard to the evidence. 2. The High Court erred in finding that circumstantial evidence proved beyond reasonable doubt that the Appellant committed the offence of Hindering Burial of Dead Body contrary to section 132 of the Penal Code. The Court’s judgment cannot be supported having regard to the evidence. 3. The High Court erred in finding that the Appellant committed the offence of Perjury contrary to section 101 of the Penal Code when the totality of the evidence before the Court did not prove the offence as particularized in the Perjury count to which the appellant was asked to plead. 4. The High Court erred in ordering that the offences of Hindering Burial of a Dead Body contrary to section 131 of the Penal Code and Perjury contrary to section 101 of the Penal Code be added to the charge against the Appellant. The Order flouted section 21 of the Extradition Act and Article 13[1] of the Extradition Agreement between Malawi and South Africa, 5. The High Court erred in holding that section 3 of the Criminal Procedure and Evidence Code cured the State’s breaches and violations of statutory and constitutional provisions in obtaining evidence used at trial. The Court’s judgment is a wrong decision of a question of law; and 6. The High Court erred in sentencing the Appellant to life imprisonment for the offence of murder and 2 years imprisonment each for the offences of Hindering Burial of Dead Body and Perjury. The sentences are excessive, wrong in principle and a miscarriage of justice. THE LAW Many points of law were raised in the course of hearing this appeal. We will not spell them out at this stage. Suffice it to say firstly that appeals in this court are dealt with by way of rehearing. In STEWART LOBO V The Republic MSCA Criminal Appeal Number 14 of 2017[unreported] this Court said: ‘in determining this appeal we will ask ourselves the question whether on the facts and law before the trial court and now before us we would have come to the very conclusions arrived at by the said court. If the answer be in the positive in all material aspects the appeal will fail. If, however the answer be wholly or in part in the negative, the appeal will succeed either wholly or to the extent of the negative responses’. This approach was an endorsement of the stand, also taken by this Court, in the cases of Gadabwali v Rep MSCA Miscellaneous Criminal Appeal Number 2 of 2013[unreported] and that of Dr S K Chilima & Dr L M Chakwera v Professor A P Mutharika & Electoral Commission MSCA Civil Appeal Case Number 1 of 2020[unreprorted] Secondly, we must reiterate the fact that an accused will only be found guilty of an offence they are charged with if the evidence is such as to prove the allegations against them beyond reasonable doubt. If such is not the case or there is doubt whether or not such is the case the accused will be acquitted or, if the latter be the case, the doubt will be resolved in their favour by way of an acquittal. Thirdly and as to the meaning of proof beyond reasonable doubt a most elaborate exposition thereof is to be found in Minister of Pensions v Miller [1947] 2 All ER 372 at 373 where Lord Denning said: ‘that degree[of proof beyond reasonable doubt] is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it allowed fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is probable, but not in the least possible’, the case is proved beyond reasonable doubt, but nothing short of that will suffice’. Fourthly and following on the immediately above we should reaffirm the fact that the burden to prove an accused guilty beyond reasonable doubt always rests with the State. This Court, in the case of Dr. Bakili Muluzi v The Attorney General 4 MSCA Constitutional Appeal Case Number 25 of 2018[unreported] cited with approval the case of Woolmington v DPP [1935] AC 462 and sections 187 of the Criminal Procedure &evidence Code[CP&EC] and 42[2][f][iii] of the Constitution in that regard. THE ISSUES There are two broad issues in this case namely the guilt/innocence of the accused and the sentences. Put differently the first question is whether, on the facts and law, the appellant is guilty as charged and the second whether the appellant was appropriately sentenced. There are, aside from the above two broad issues, other somewhat minor issues. Prominent amongst them is about circumstantial evidence. The appellant contends that the circumstantial evidence herein is not such as should be the basis of the convictions in the murder and hindering the burial of a dead body counts. Another is the debate around section 3 of the CP&EC. The appellant thinks the court below misapprehended and misapplied it in this case when it held that the section can be used cure errors of law. We now turn to a consideration of the grounds of appeal. Ground One We have set it out above. The gist thereof is that the court below erred in finding that the circumstantial evidence therein proved beyond reasonable doubt that the appellant caused the death of Linda Gasa. Looking at this ground of appeal it is clear that the disputation is not about whether Linda Gasa is dead or not[because she is] or whether or not her death was caused with malice aforethought. Rather whether it is the appellant who caused her death. It is also clear that this ground of appeal is premised on an alleged want of evidence. But the appellant is not just contending that there is no evidence to prove beyond reasonable doubt that he caused the death of Linda Gasa. He goes on to, on the one hand, point out that the only evidence against him was circumstantial evidence and on the other to argue that the circumstantial evidence before us is incapable of proving beyond reasonable doubt that the appellant caused the death of Linda Gasa. The appellant’s understanding of circumstantial evidence and its effect, which the State and this Court agrees with, is that it will only lead to an accused’s conviction if the accused’s guilt is the only conclusion to be drawn from the evidence. In the alternative if the circumstantial evidence is incapable of any other explanation than the accused’s guilt. He cited the case of Charles Chafungatira v R Criminal Appeal Number 35B of 2000[unreported] where the High Court said: ‘where the prosecution as here relies on circumstantial evidence, the evidence must be such that it proves beyond reasonable doubt that the accused committed the offence. The evidence relied on must be such that it leaves no break in the evidence on which the inference should be drawn. The principle is covered by decisions of this court in Nyamizinga v R [1971- 72] 6ALR 258 and Banda v R 6 ALR 383’. And also of Dickson v R [1961-63] 2 ALR where the High Court also said: ‘where the evidence is circumstantial the accepted and logical approach is by way of elimination, that is by negativing all possible hypotheses of innocence..... in order to justify from circumstantial evidence an inference of guilt the facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of his guilt. The burden of proving facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused’. And if only to add more weight Ligowe, J. in R v Abraham Sikwese Confirmation Case Number 296 of 2017[HC][Unreported] said about circumstantial evidence: ‘.. this case hinges on circumstantial evidence. The law is that a court of law can only convict an accused person on circumstantial evidence if one inference and one inference only compatible with his guilt is possible. If ‘other inferences compatible with his innocence are possible the court cannot convict’. The Arguments The appellant’s arguments are, as we understand them, in three parts. Firstly, that there are no proven facts to support the inference/conclusion of guilt. Secondly that whatever facts the court below proceeded on are rooted in hearsay, inadmissible and therefore incapable of being the basis of any inferences/conclusions and thirdly that the facts relied upon by the court below were in point of fact capable of inferences/conclusions other than the inference/conclusion that the appellant caused Linda Gasa’s death. Specifically, the appellant contends that there was the possibility that persons other than the appellant caused the death of the late Linda Gasa. The appellant gave examples of evidence which he claims was inadmissible for being hearsay but which the court below used to conclude his guilt. Beginning with the totality of PW1’s[Jessie Kachale] evidence. In the appellant’s view her evidence was hearsay. Specific examples are the allegations that Linda Gasa got money from PW1 to use as transport to go to Nyambadwe to meet the appellant and the assertions that the deceased told her that she was proceeding, with the appellant, to the appellant’s cottage in Monkey Bay and also that she was in Monkey Bay with the appellant at the appellant’s cottage. The appellant also gave examples of facts which though not proven were used as the basis for concluding that he caused the death of Linda Gasa. First is the evidence of Major Madondolo[PW4]. The witness, according to the court below, testified that he saw the appellant leave his cottage with a lady only to come back later without one while insisting that he[i.e. Madondolo] goes out, in the middle of the night, to buy drinks. The appellant contends that the High Court’s recollection, understanding and use of Madondolo’s testimony is flawed. And the conclusions drawn therefrom untenable. Firstly, there is no identification of the lady the appellant was with. Madondolo never identified the woman as Linda Gasa. Secondly, he made no exact mention of the dates on which the appellant was seen with this unidentified woman. From the appellant’s analysis however, it is his contention that Madondolo must have seen him with this woman after August 4, 2010 the date on which Linda Gasa is alleged to have been killed. The woman the appellant was with could not therefore have been Linda Gasa. The conclusion by the court below that Linda Gasa was this unidentified woman and therefore that she was killed at the cottage by the appellant is not supported by the evidence circumstantial or otherwise. Then there is the allegation that the appellant was the last person seen in the live company of late Linda Gasa and the conclusion therefrom that he must be the one that killed her. The appellant argues that there is simply no proof that he was the last person to have been with a live Linda Gasa. The conclusion that he was and must therefore be the person that killed her cannot even arise. The appellant also took issue with the trial court’s inferences/conclusions from the evidence of Chikumbutso Bwana[PW2] and Stain Khonje[PW3]. The former was asked, apparently in the middle of the night, by the appellant to dig a hole. The court below thought such a request suspicious. There was no plausible reason given for digging a hole in the middle of the night. The court below thought the only inference/conclusion to be drawn from such request was that the appellant had indeed killed Linda Gasa and was seeking to use the hole to bury her. Stain Khonje was on the other hand asked by the appellant to provide, on hire, a boat to be used, basically, for fun. Again, the Court below thought the ‘hire’ fishy. It concluded that the ‘hire’ was part of the scheme around the killing and disposal of Linda Gasa and her dead body. The appellant thought such conclusions unwarranted/unjustified. Firstly, there was no date as to when this happened. There was no way therefore to connect the above events to the time lines within which Linda Gasa is alleged to have been killed. Secondly there are myriad reasons for wanting to dig the hole even if it was in the middle of the night. Or to hire a boat. The court below, in the view of the appellant, was making way too much of the above perfectly innocuous incidents. But more than that the said court, according to the appellant, got parts of 8 Khonje’s testimony wrong. The intended hire was not in the middle of the night. It was actually in the morning. Also deemed insignificant by the appellant was the evidence that the appellant visited the deceased’s school after her death and also that he fled the jurisdiction soon thereafter. There is no evidence of the foregoing according to the appellant. But even if they were, the two pieces of evidence are, by themselves or in the light of other available information incapable of establishing the fact that it is the appellant who caused the death of Linda Gasa. The appellant also rubbished the fact that the dead body was found in his cottage. In his opinion that fact alone or together with other proven facts was not capable of leading to the one and only significant conclusion that it is the appellant that killed the deceased. There was according to him still the possibility that she might have been killed by persons other than himself. Looking at all of the above it is the view of the appellant that there is no evidence, circumstantial or otherwise, from which the inference can be drawn that he caused the death of Linda Gasa. The facts from which the court below drew such inference/conclusion are capable of more than one inference/conclusion. One of them is that persons other than the appellant might have caused the death of Linda Gasa. The appellant believes he is entitled to an acquittal on the murder count. The State on the other hand found no fault with the conclusion that the appellant caused Linda Gasa’s death. In its view the proven facts show that the appellant was with the late in Monkey Bay from August 4", 2010. They also show that the appellant was on one night seen with a woman at his cottage in Monkey Bay. He left with this woman and never returned with her. Later on, Linda Gasa was found dead and buried in the appellant’s cottage. Those facts considered in the light of the nocturnal boat hire and request for a hole can only lead to one and only one conclusion namely that it is the appellant who caused the death of Linda Gasa. The State therefore prayed that we dismiss the first ground of appeal. In our view there is in relation to the first ground only one question to be asked and answered. Does the evidence, circumstantial or otherwise, now before this 9 Court and then before the court below prove beyond reasonable doubt that it is the appellant who caused the death of Linda Gasa? Proceeding on the evidence it is an uncontested fact that Linda Gasa is dead. She was found dead and buried in Monkey Bay in a cottage belonging to the appellant on September 15, 2010. Another fact is that the deceased and the appellant knew other very well. They were clearly in a more than platonic relationship. PW1 was aware of this relationship. It explains her act of giving transport money to the deceased to go to Magalasi to see the appellant. We are aware of the appellant’s contention that the totality of PW1’s evidence is hearsay. It is not an entirely correct contention. Her evidence might be hearsay in so far as it was intended to prove where the late was going and the identity of the person she was going to meet. It is however not hearsay to the extent that it proved that the appellant was in a relationship with the appellant and also that she gave transport money to the late Linda Gasa on August 4, 2010. Another set of facts that are not in doubt are firstly that the late Linda Gasa took leave of PW1 on August 4‘ and was never again seen alive. Secondly, it is also a fact that following inquiries from PW1 the appellant was questioned about the whereabouts/disappearance of Linda Gasa from as early August 8, 2010. His story, as told in a statement provided to Soche Police on August 17/18, 2010 was that he had on August 4, 2010 left her at Wenela Bus Depot in Blantyre enroute to Zimbabwe. This Zimbabwe story is clearly not true. She was, on the evidence, never on a trip to Zimbabwe. Even when she took leave of PW1 she was clearly going to some place other than Zimbabwe. Yet another undisputed set of facts is firstly that both the late and the appellant were in Monkey Bay between August 4‘ 2010 and most certainly August 9t, 2010. That is obvious from a record, i.e., call logs, of the telephonic traffic between the late Linda Gasa, PW1 and the appellant and the fact that her dead body was found in Monkey Bay. Secondly it is another indisputable fact that the appellant was between August 4" and 9 not just in Monkey Bay but at his cottage in Monkey Bay. With a woman. That is clear from the evidence of PW2, PW3 and PW4. PW2 is Chikumbutso Bwana. The gentleman who was asked by the appellant to dig a hole in the middle of the night. PW3 is Stain Khonje. He was in similar circumstances 10 asked to provide a boat for hire. PW4 is Madondolo the gentleman who saw the appellant leave the cottage in the night with a woman and return on the same night without the woman. True the appellant raised issues about the admissibility of the call logs and the dates on which Linda Gasa was killed around which the evidence of PW2, 3 and 4 revolves. Firstly, he contends that the call logs should not be allowed into the body of evidence at all. The person who tendered them into court is not the one who produced them. They are in other words hearsay evidence. Secondly, he contends that the call logs have so many irregularities they are incapable of telling and proving the story that the State wants them to namely that the appellant was on August 4/5, 2010 in touch with both PW1 and the deceased and further that the appellant and the late Linda Gasa were both in Monkey Bay at or around this very time. In other words, that reliance cannot be placed on them. The call logs are by the appellant’s own admission Celtel/Airtel information about calls made by their subscribers. They were, again by the appellant’s own admission, retrieved from Celtel/Airtel’s information banks. PW9, the witness who tendered them in the court below and an employee of Celtel, identified them as call logs from Celtel/Airtel about the telephonic traffic between inter alia PW1, the appellant and the late. Should they be inadmissible for being hearsay merely because they are presented by a person other than the person who generated them? The answer is in the negative. And there are two sides to this debate in our view. First is whether or not the call logs are from Celtel/Airtel. And secondly the story which they are meant to tell in this case. If the dispute was the former the contention that the call logs are inadmissible for being hearsay would have a leg to stand on. The only person who would vouch for them being from Celtel/Airtel would be the person who generated them. And PW9 not being such a person he would be giving hearsay evidence if he told the trial court that they were. Fortunately for everyone else that is not the dispute. Like we have said above even the appellant agrees that the call logs are from Celtel/Airtel. The call logs are therefore in that regard/context not hearsay evidence. 11 About the story which call logs tell, this very Court in Mvula v R MSCA Criminal Appeal Number 7 of 2012[unreported] said call logs are a record of telephone interactions/traffic between specific subscriber numbers at specific times. They are, with the assistance of telecommunications towers, also able to point to locations from which particular calls were made. Applying the above to the instant case, the story from the call logs in issue herein is, inter alia, to the effect that the telephone numbers assigned to the deceased, PW1 and the appellant were on August 4" to 5‘, 2010 in contact with each other. PW1’s number was operating from Blantyre while those of late Linda Gasa and the appellant were both in Monkey Bay. Is that story inadmissible for being hearsay? Merely because the call logs from which it was concluded/inferred were tendered into court by a person other than the one who generated them? Again, the answer is in the negative. The story is not from the employee who generated the call logs. Not even from PW9. The story is from the call logs themselves. It does not therefore matter who tenders the call log. It matters that they are without doubt a call log from Celtel/Airtel relating to telephonic traffic amongst numbers ascribed to the appellant, the late and PW1. And that they are attesting to the fact on the one hand that the numbers were in contact around August 4'"/5", 2010 and on the other that the appellant’s and the late’s number were at this time both operating from Monkey Bay. There was also mention by the appellant of the unreliability of the call logs. He raised issues regarding the length of the conversations between PW1 and the deceased and that between the deceased and the appellant. The appellant misapprehends the issues. The call logs are not about how long the telephones interacted with each other at particular instances. They are about whether the numbers in issue interacted at all, when and from which locations. Looked at in that fashion it is clear that the appellant’s questions about the reliability of the call logs are without foundation. The appellant also raised issues about the veracity of the evidence of PW2, 3 and 4. Specifically with respect to the dates on which the events they testified about occurred. In his view the witnesses were not exact about the date[s] on which the 12 appellant was seen with the unidentified woman at his cottage in Monkey Bay. The woman could not have been Linda Gasa. According to the appellant’s calculations he and this mysterious woman could only have been at the cottage way after Linda Gasa’s death. With respect the appellant is catching at straws. To begin with the date of death in the particulars of the charge is not stated with exactitude in the charge. It specifically says ‘on or about August 4th, 2010’. Challenging the witnesses’ evidence purely on the basis that death was caused exactly on August 4‘ is, with respect, without merit. Secondly and looking at the totality of the evidence, it is obvious that Linda Gasa’s death and burial at the appellant’s cottage could only have occurred before August 8", 2010. It must be remembered that following Linda Gasa’s nonappearance in Zimbabwe PW1 reported her disappearance to the police on August 8", 2010. Immediately the police set about looking for her. PW2, 3 and 4 were even asked about Linda Gasa. The appellant appeared before Soche Police twice culminating in the statement of August 18, 2010. It is unimaginable that Linda Gasa could have been killed and buried after August 8, 2023. Too many people were looking for her and the appellant’s cottage in Monkey Bay was the center of the investigation. Whereas therefore the witnesses PW2, 3 and 4 might not have mentioned actual dates when they saw the appellant with a woman or otherwise interacted with him it is clear from totality of the evidence that this was most certainly between August 4 to 8, 2010. Going back to the proven facts we know that the late had a more than platonic relationship with the appellant. On August 4, 2010 she took leave of PW1 telling her that she was going to see the appellant. We know from the call logs that on August 4 going on to August 5, 2010 her telephone number interacted with that of PW1 and the appellant. It was used from Monkey Bay. We also know, via the call logs, that on these very days the appellant’s number was used from Monkey Bay. It was in touch with both PW1 and the late Linda Gasa. We also know from the evidence of PW2, 3 and 4 that from August 4, 2010 the appellant was at his cottage in Monkey Bay. On one night from August 4 from the appellant left the cottage with an unidentified woman. He later came back alone. Meanwhile a report was made to the police about the disappearance of Linda Gasa by PW1 on 13 August 8" 2010. The appellant was asked about the whereabouts of Linda Gasa. The appellant gave a false statement to Soche Police on August 17/18", 2010 to the effect that he on August 4, 2010 escorted the late to Wenera Bus Depot on her way to Zimbabwe. On September 15‘, 2010 the late Linda Gasa was then found dead and buried in the appellant’s cottage at Monkey Bay referred to above. The appellant contends that the above facts are capable of more than one conclusion. One such conclusion could be that the appellant caused the death of late Linda Gasa. One other could also be that persons other than the appellant killed the late Linda Gasa. That is the reason the appellant ultimately contends that the circumstantial evidence before the court below was not such as to justify his conviction. We are, with respect, of a most different opinion. The conclusion from the facts before us is as singular as it is obvious. It is and must be that it is the appellant who caused the death of the late Linda Gasa. To use the words used in the Chafungatira and Dickson cases referred to above the circumstantial evidence before us is incompatible with the appellant’s innocence. It is incapable of explanation upon any other hypothesis than that of his guilt. In point of fact the appellant’s contentions are nothing more than the fanciful possibilities given prominence by Lord Denning in Ministry of Pensions v Miller. The first ground of appeal is hereby dismissed for want of merit. Ground 2 Illegally Hindering the Burial of a Dead Body The allegation against the appellant is that he unlawfully hindered the burial of the dead body of Linda Gasa. He denies the allegation. The court below nevertheless convicted him and premised its conclusion on circumstantial evidence. The appellant challenges the conviction. He contends that the circumstantial evidence the basis of his conviction is incapable of proving the above allegation against him beyond reasonable doubt. In his view the said evidence is capable of more than one conclusion. The court below should not therefore have found him 14 guilty on this count. He prays that this Court finds such conviction untenable, sets it aside and acquits him. See paragraphs 4.0, 4.10 and 4.11 of the appellant’s skeleton arguments. The State disagrees with the appellant. Its arguments are a repetition of what it said in relation to the appeal against the murder charge. In its considered view the circumstantial evidence before the court below was capable of only one conclusion namely that the appellant unlawfully hindered the burial of the late Linda Gasa. It therefore prayed that we dismiss the appeal and sustain the conviction on this count. In many ways the arguments in relation to this ground are similar to those advanced in relation to the first. We will therefore try as much as possible not to repeat ourselves. Suffice it to say that central to the appellant’s argument are his contentions firstly the fact that Linda Gasa’s dead body was found buried in his cottage cannot be proof beyond reasonable doubt that he unlawfully hindered the burial of her dead body. Secondly, he contends that there is no direct evidence linking him to the alleged unlawful hindrance of the burial of Linda Gasa’s dead body. Just like about the first ground of appeal it is absolutely necessary that the appellant’s appeal is properly understood. He is not contending that there was no illegal hindrance to the deceased’s burial. In fact, it would most probably be strange if anybody contended otherwise. He is arguing that he is not the author of the alleged illegality. We disagree with the appellant. He clearly got to his not guilty conclusion by cherry-picking the evidence on record. Emphasizing on that which put him in good light while at the same time ignoring that which put him in bad light. He conveniently ignores, for instance, the fact that Linda Gasa disappeared on August 4, 2010. That in his statement to the police, freely given and not disowned in the court below, he lied that he had dropped the late at Wenela Bus Depot enroute to Zimbabwe. That the truth was in fact that she travelled to Monkey Bay. That the appellant was also in Monkey Bay on this date. At his cottage. That there is evidence to the effect that his and her telephone interacted from Monkey Bay. He 15 also disregards the facts that during this time and while he was residing at his cottage in Monkey Bay, he, on one night left the cottage with a woman never to return with one. And that the late Linda Gasa, his girlfriend, was then found buried in that very cottage on September 15, 2010. Proceeding on the above facts it is obvious that whoever buried the late Linda Gasa sought to conceal her death. To conceal the identity of her killers. Above we have concluded that it is the appellant who killed the late Linda Gasa. The obvious inescapable conclusion from the above facts is that it is the appellant who having killed Linda Gasa sought to hide her death by burying her dead body in the cottage. That is the very essence of the offence of illegal hindrance of the burial of a dead body. The appellant in seeking to hide Linda Gasa’s death hindered the burial of her dead body. Unlawfully. The second ground of appeal is also without merit. It is dismissed. Ground Three Perjury The appellant contends that the court below erred in finding that the appellant committed the offence of perjury. In his view the evidence before the court below did not prove beyond doubt the offence of perjury as particularized. He also raised issues about the propriety of the perjury count. In his view it should have set out the alleged false testimony. To the extent therefore that it did not, the charge, on the one hand, effectively alleged no offence in relation to which the appellant could have been found guilty and, secondly, flouted the fair trial requirement for an accused to be informed of charges against them with sufficient particularity as entrenched in section 42[2][f][ii] of the Constitution of the Republic of Malawi. The charging section i.e., section 101 of the Penal Code provides: ‘Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching on any matter which is material to any question then 16 depending in that proceeding or intended to be raised in that proceeding shall be guilty of the misdemeanor termed perjury’ [Sic] According to the appellant the offence of perjury will be deemed committed if an accused knowingly gives false testimony in any judicial proceedings or for purposes of instituting any judicial proceedings. The alleged false testimony in this case is a statement recorded by Soche Police about the disappearance of late Linda Gasa on August 17", 2010. According to the appellant, the testimony was neither given ina judicial proceeding nor for purposes of instituting any. The guilty conviction for perjury cannot therefore stand. See page 43 of his skeleton arguments. The State disagrees with the above contentions. As we understand it there is no doubting that the statement in issue was to the appellant’s knowledge false. It falsely stated that Linda Gasa had left for Harare Zimbabwe. It is also obvious that the statement from the appellant was material to the missing of Linda Gasa which fact was proven when its contents, specifically the contention that Linda Gasa had left for Zimbabwe, was raised in the criminal proceedings connected to the disappearance of Linda Gasa. About the defective count the State was content, a tad disappointingly, to argue that the appellant should have raised the issue at the time he was asked to plead. See section 151[1] of the CP&EC. That not having done so he should not be allowed to do so now. The State prayed that the appeal in respect of the perjury conviction be dismissed. The particulars of the perjury count are as follows: ‘MISOZI CHANTHUNYA on or about the 17‘ day of August 2010 at Soche Police Station in Blantyre district knowingly gave false testimony touching on the missing of LINDA GASA which was material to the question of the murder of the said LINDA GASA’ [Sic] Do the particulars, as the appellant contends, give insufficient particulars of the charge? Does the count therefore fall afoul of the fair trial tenets set out in section 42[2][f][ii] of the Constitution of the Republic of Malawi? 17 Before answering the above question, we should first deal with the State’s references to section 151[1] of the CP&EC. Relying on that section the State contends that the appellant should have objected to the perjury charge’s propriety when it was first brought to his attention or when he was asked to plead. That not having done so he must not be allowed to question its propriety in this Court. The horses had, so to speak, bolted. With respect we think such a proposition dangerous. It assumes, wrongly in our view, that every accused person has the capacity to object to a charge’s propriety at the time they are asked to plead or when it is first brought to their attention. We will not talk about most of our accused persons’ literacy levels or about a trial court’s ability to explain a charge to an accused person. We will instead raise the obvious fact that most of our accused persons are without legal representation and posit that it is perhaps expecting too much to hope that such an accused will not only challenge the propriety of a charge but also do that in accordance with section 151[1] abovementioned. And should an accused be denied a chance to object whenever cause to object arises when the State has effectively free hand when it comes to amending a charge? Of course, the appellant herein was represented and his representatives should have drawn the court’s attention to any flaws in the charge. It must be remembered however that the duty to charge, with what offence and to properly draft the charges is that of the State. The primary obligation to ensure the propriety/correctness of the charge in all its respects is also that of the State. Where the State falls below the expected standards it must bear the consequences. The accused, including an appellant in our view, must be effectively remedied. Accordingly, it is our conviction that an appellant should not, because of section 151[1] of CP&EC, be denied the chance to challenge the propriety of a charge in this court just because they did not do so when the charge was first brought to their attention in the trial court. There is the real risk of courts countenancing unfair trials if such were the law in practice. Our appellant must therefore be allowed to challenge the propriety of the perjury charge in this Court. 18 The second part of appellant’s arguments is that the perjury count is defective for a want of particulars. Specifically, that the charge did not, contrary to his fair trial entitlements guaranteed in in terms of section 42[2][f][ii] of the Constitution, have the capacity to inform him about itself with sufficient particularity. The appellant’s argument cannot stand. The particulars of the charge, which we have set out above, make reference to a specific statement. One that he gave to Soche Police on August 17%, 2010. It also particularized the falsity in that statement, namely allegation that the late Linda Gasa had gone to Zimbabwe, that was the essence of the perjury. Unless he wanted the said statement wholly included on the count’s particulars it is our conclusion that the contention that the perjury count fell afoul of section 42[2][f][ii] of the Constitution for not providing sufficient particulars about itself is not made out. There was/is no flouting of the fair trial principles provided for therein. The perjury count had_ sufficient particularity about itself. The appellant also contended that the alleged false testimony was not given ina judicial proceeding or for purposes of instituting one. That there was therefore no offence of perjury alleged against him. Yet again we must disagree with the appellant. His is not only a very restrictive view of the charging section but also an incorrect one. He believes that the ‘false testimony’ referred to in the charging section equals a complaint. That any other statement, howsoever false and whatever role they play in subsequent judicial proceedings, cannot be the subject of perjury proceedings. The law would be of little use if such were the understanding placed on section 101 of the Penal Code. In our view false testimonies covered in section 101 go beyond complaints. They include any statement that plays a part towards the institution of judicial proceedings. In the instant case the statement was obtained in the course of inquiries into possible criminal conduct following the disappearance of the late Linda Gasa. This statement was clearly part of the basis on which the appellant was charged with, inter alia, murder when Linda Gasa turned up dead and buried at the appellant’s cottage in Monkey Bay. The testimony from the appellant was to that extent a testimony made/obtained for purposes of instituting judicial proceedings. That testimony was to the appellant’s knowledge false. He knew 19 that he did not take Linda Gasa to Wenela Bus Depot for her journey to Zimbabwe. He knew Linda Gasa was dead and buried at his cottage in Monkey Bay. The particulars of the charge not only gave sufficient particulars of the alleged perjury they also properly alleged perjury. The third ground of appeal is dismissed for want of merit. Ground 4 Whether The High Court Erred in Ordering, Contrary to Section 21 Of the Extradition Act and Article 13[1] Of the Extradition Agreement Between Malawi and South Africa, That the Offences of Hindering the Burial of a Dead Body Contrary to Section 113 Of the Penal Code and Perjury Contrary to Section 101 Of the Penal Code Be Added to The Charges Against the Appellant As we understood him the appellant argued against the amendment of the charge sheet to include two extra charges, namely Perjury and Hindering the Burial of a Dead Body. In his view, and as a fugitive, he should only have been prosecuted for the offence on the basis of which he was extradited from South Africa namely the murder of Linda Gasa and no more. To the extent therefore that the proceedings against him went beyond the murder charge the appellant contends that ‘the totality of the amendment, prosecution, conviction and sentencing of the appellant on the two charges were contrary to the constitutional requirement for the observance and upholding of the rule of law .... and are invalid and therefore without effect’ [Sic] The basis of this ground of appeal is section 21 of the Extradition Act and Article 13[1] of the Extradition Agreement between Malawi and South Africa. Section 21 above mentioned is in the following terms: ‘where in pursuance of an agreement under this Act, a fugitive offender is surrendered by a designated country to Malawi, the offender shall not, until he has been restored or had an opportunity of returning to that country, be dealt with in Malawi for and in respect of an offence committed before his surrender other than- [a] the offence in respect of which his surrender was requested; 20 [b] any lesser offence proved by the facts proved for the purpose of his surrender; or [c] any other relevant offence in respect of which the appropriate authorities in the designated country concerned may consent to his being so dealt with’[Sic] Article 13[1] of the alleged Extradition Agreement runs as follows: ‘[1] A person who has been extradited under this Agreement shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence for any offence committed prior to his surrender other than that for which he was extradited, nor shall he for any other reason be restricted in his personal freedom, except in the following cases: - [a] When the requested Party consents thereto. A request for consent shall be submitted by the requesting Party, accompanied by the documents mentioned in Article 10, paragraph 2, and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall not be withheld when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Agreement. [b] when the person, having had an opportunity to leave the territory of the requesting Party, has not done so within 45 days of his final discharge, or has voluntarily reattuned to that territory after leaving it’. [Sic] The appellant accepts that there are exceptions to the above general provisions. He however contends that the exceptions in section 21[a] and Article 13[1] abovementioned do not save the amendments referred to above. The amendments are outside the ambit permitted by section 21[b]. To benefit from the said exception the State should, in his view, have first dealt with the appellant to finality on the murder charge and then used the facts proved therein to prove the additional charges. There should, in other words, have been two trials. One to 21 determine the appellant’s guilt on the offence for which he was extradited i.e., the murder charge and subsequently another in respect of the Perjury and Hindering Burial of a Dead Body counts premised on the facts proven in the murder charge. Secondly the exceptions in section 21[c] and Article 13[1] of the Extradition Agreement are, according to the appellant, not applicable in the instant case. Their operation is premised on the designated country, in this case Republic of South Africa, granting consent to this jurisdiction to proceed against the appellant for offences other than the murder count. There was no such consent. The State disagrees with the appellant. It is of the view that there was nothing wrong with the amendment to include the two additional offences. That is allowed under section 21 and Article 13 aforementioned for as long as they are based on the facts on which the extradition was based. It therefore prayed that we dismiss the fourth ground of appeal for want of merit. For slightly different reasons we agree with the State’s conclusion. But before we go into what might be called matters of substance, we must first emphasize that although extradition issues between Malawi and the Republic of South Africa are the business of both the Extradition Act and the Extradition Agreement primacy is always with the Act. The Agreement between the two countries must therefore be read subject to the Act. In fact, section 21 of the Act is clear enough in that regard. So, exactly what does section 21 of the Extradition Act say? In our view it, in paragraph [a], lays down a general principle which is that a fugitive should only be prosecuted for the offence for which they are extradited. In this case the murder of Linda Gasa. The section also provides for exceptions to the general principle in paragraph [a]. They are in paragraphs [b] and [c] of section 21. The appellant has however, in our view, clearly misunderstood the exceptions. He adopted an unduly complicated view of them. One that produces absurdities. In our view a fugitive can be validly proceeded against for offences other than the ones he was extradited for. As long as the additional offences are lesser than that for which he is being extradited and 22 secondly if the said offences are provable by and based on the very facts on which the extradition is grounded. And it makes sense. It avoids two extradition processes/trials on the same facts. Thus saving time and treasury. Applying the foregoing to this case it is our conclusion that the two extra offences were lawfully added to the charge sheet. They are both lesser to murder which is the charge for which the appellant was extradited to Malawi. Secondly, they were clearly provable and actually proved by the very facts that were placed before the courts in South Africa for purposes of securing the appellant’s extradition to Malawi and subsequently his conviction for the murder of Linda Gasa. The amendment questioned by the appellant cannot in our view be faulted. Neither can the ‘charging, proceeding, conviction and sentencing’. The fourth ground of appeal is also dismissed. Ground 5 Whether The High Court Erred in Holding That Section 3 Of The CP&EC Cured the State’s Breaches and Violations of Statutory and Constitutional Provisions in Obtaining Evidence Used at Trial Context is key to understanding the appellant’s argument. The essence thereof is that the evidence on which the convictions against him are grounded is illegally obtained evidence. That evidence in his view should not have been admitted into the body of evidence in this case. Had the court below so proceeded it would have easily come to the conclusion that the convictions against him are untenable for want of evidence and acquitted him. Instead, and despite having conceded that the evidence was illegally obtained the court below resorted to section 3 of the CP&EC, cured the illegalities, allowed the said evidence into the body of evidence and proceeded on the basis of such evidence to find him guilty. The appellant contends that the trial court erred. Section 3 above-mentioned should only be used to cure technical as opposed to substantive errors of law which the errors in this case were/are. The errors in issue herein are illegalities and 23 breaches of the Constitution. They cannot and should not be cured by resorting to section 3. The appellant prays that this court agrees with him, discards the trial court’s resort to section 3 aforementioned, disregards the illegally obtained evidence, finds the offences against him unproven for want of evidence and proceeds to acquit him. About the application of section 3 the appellant cited, in support of the above arguments, the case of Namata v R Criminal Appeal Number 13 of 2015[unrep] where this Court inter alia said: ‘secondly, and about the application of sections 3 and 5 of the CP&EC it is our most considered view that the above sections must only be used in relation to errors of a technical nature. And where they must be used it is not enough for the State to stand up, allege that the error is of a technical nature, or that it has not occasioned an injustice to the accused, sit down and hope that the Court will agree with them. The State should show, literally beyond doubt, why such is the case.....’ The appellant cited three instances of illegally obtained evidence. First, he contends that sections 113, 113A and 114 of the CP&EC was not adhered to. These sections are about search warrants. They provide for the manner in which search warrants should be obtained and executed. Specifically, section 113 says search warrant should be obtained upon application to a court stating the law and grounds under which the application is made and must be supported by written information. In section 113A it is a requirement that all materials/evidence seized courtesy of such warrant should be brought back to the court that issued the warrant or any other competent court to be dealt with in accordance with the law. Section 114 on the other hand specifies the time during which the warrant should be executed namely between sunrise and sunset unless otherwise sanctioned by the issuing court. In the instant case the appellant argues that there is no evidence that sections 113, 113A and 114 were complied with. The search warrant for Mwala Cottage and the dead body found thereat were not brought to court. Much the same is true 24 about the call logs. Neither the warrant for their procurement nor the application for the warrant’s issuance was brought to court. And after they were obtained, the call logs were not surrendered to court. To make matters even more serious the call log warrant was not, according to the appellant, executed by a police officer but by PW1, a civilian. Secondly, the appellant contends that section 115 of the Public Health Act was not complied with. Thereunder a body can only be exhumed pursuant to a permit issued under that section by a Coroner. No such permit was issued herein. The exhumation of the body of the late Linda Gasa was therefore illegal. Any evidence thereby obtained was illegally obtained and therefore inadmissible. Thirdly the appellant claims that sections 10, 11 and 12 of the Inquests Act were not complied with. No Coroner was informed that there was a dead body lying entombed at Mwala Cottage. No warrant/order was obtained to perform a post mortem on the body. In the view of the appellant the post mortem report herein as prepared by Dr Dzamalala was inadmissible for having been obtained in blatant disregard of the Inquests Act. In other words, for having been illegally obtained. The appellant thus contends that the admission of evidence in disregard of sections 113, 113A and 114 of the CP&EC, section 115 of the Public Health Act and sections 10, 11 and 12[1] of the Inquests Act is inconsistent with our constitutional fundamentals which in section 12[1][f] require all institutions and persons, including players in the criminal justice system, to observe and uphold the Constitution and the rule of law. It flouts section 20 of the Constitution by putting some persons, namely the State herein, beyond the law. It allows government acts and legislation that is inconsistent with the Constitution to, contrary to section 5 of the Constitution, trump the Constitution. The appellant concludes by stating that the evidence on the basis of which he was convicted is invalid, inconsequential and inadmissible for having been illegally obtained, being unconstitutional and falling afoul of the fair trial principles set out in section 42[2]2[f] of the Constitution. And section 3 of the CP&EC should not have been resorted to. The errors in this case are substantive as opposed to technical errors. Not guilty verdicts should in 25 his opinion have been entered against him the evidence against him having been found inadmissible. The court below also had its say about the alleged illegally obtained evidence and the use of section 3 of the CP&EC to sanitize any such illegality. In its view the issues raised by the appellant were of a technical as opposed to a substantial nature. They are curable using section 3 abovementioned. It accordingly cured the illegality, admitted the evidence and proceeded to use the same to convict the appellant. At page 111 and 112 of the court record the trial court said about illegally obtained evidence and the way forward: ‘in this part the court will generally discuss the objections raised by the defence relating to the inadmissibility of illegally obtained evidence. The defence argues that the process of obtaining search warrant; absence of the involvement of a coroner; procedure of exhumation amongst other procedures taken during investigation of the matter and presented in evidence were illegal. This court is of the view that section 3 of the Criminal Procedure and Evidence Code would apply in this matter to cure the procedural defects. It is imperative that substantial justice should be done without undue regard for technicality. We should not lose sight of the fact that a dead body was found. This dead body was found in the accused’s cottage. The accused was the last person with the deceased alive on 4° August as per his statement. The gist of the criminal law is to find whether a crime has been committed and find out who committed the crime without a miscarriage of justice within the cardinal right to fair trial. The question is should the whole case be thrown out because a coroner was not involved and the body was exhumed illegally? Has there been a gross miscarriage of justice in the gathering of evidence? Totally not. This court finds that the procedural issues raised by the defence are technical in nature and are cured by the given law’. [Sic] The State opposes the appellant’s arguments. Disappointingly it did not have much to say on this point except to trot out the old line that whereas it might be true that the evidence in issue was illegally obtained the situation was properly 26 retrieved by the trial court resorting to sections 3 and 5 of the CP&EC. There was no injustice thereby suffered by the appellant. There was, according to the State and the illegal evidence notwithstanding, evidence beyond doubt that the deceased was dead and that it was the appellant that caused her death, that hindered the burial of her dead body and that committed perjury. The State thus prayed that we dismiss the fifth ground of appeal. We have considered the arguments from both sides and the position taken by the court below about this ground of appeal. They are all agreed that there were, as alleged by the appellant, instances of illegally obtained evidence in this case. Their disagreement[s] are therefore not about whether or not there was illegally obtained evidence but rather over how to deal with such evidence in the alternative whether the court below properly dealt with it. The appellant argues that it should be excluded and further that such illegality cannot be cured by resorting to section 3 of the CP&EC. The State and the court below believe such evidence’s illegality should be retrieved by section 3 abovementioned and the evidence allowed on to the record. On our part we are of the view that how we deal with illegally obtained evidence should be guided by legally relevant facts and prescriptions of the law. See section 9 of the Constitution. Accordingly, the facts must be accepted that these are courts of law. They must always conduct their business only as the law provides. They must never, whatever they do, give the impression that they, in some way(s], countenance any form[s] of illegality. It is equally important in our view to appreciate the fact that Malawi has since 1994 adopted a new constitutional dispensation. There have since been substantial changes to the legal landscape. We are now in the era of Constitutional superiority. All organs of government/State are now bound by the Constitution and ‘other laws’. They[the organs of State/government] can now only do that which is permitted by the Constitution of the Republic of Malawi[the Constitution] and the law. This is an era where all laws and acts must pass constitutional muster or risk being declared illegal and therefore null and void. See sections 4 and 5 of the Constitution. 27 Thirdly and proceeding on the immediately above, it is also now obligatory that all laws, human rights and constitutional freedoms are, except to the extent to which they are lawfully limited, fully respected by all branches of government namely the Executive, the Judiciary and the Legislature. And where such laws, rights and freedoms are flouted those thereby adversely affected are entitled to effective remedies from inter alia the courts of law or tribunals[our emphasis]. In other words, breaches of the Constitution and the law have consequences. See also section 41[3] of the Constitution. Fourthly, it is now common knowledge that all persons are equal under the law. There should be no discrimination on any basis. This is courtesy of section 20 of the Constitution. Lastly and for purposes of this judgment it is obvious that our criminal law, practice and procedure has changed to accord with the 1994 constitutional and legal dispensation. Thus, for instance, section 42 of the Constitution now provides for rights to which, inter alia, accused and detained/arrested persons are entitled. In no particular order they range from the right to be promptly informed of the reasons for their arrest/detention to that to be brought before a court of law before the expiry of fourty eight hours from the time of their detention /arrest. From the right to challenge the legality of their detention to the right to an immediate release from illegal detention. From the right to remain silent to the right not to be compelled to make a confession/statement or admission. There is also the right to a fair trial. It is itself a collection of entitlements that includes the right to be informed with sufficient particularity of the charge against them, the right to be presumed innocent and the right to adduce and challenge evidence. And in accordance with section 41[3] there are consequences in cases of noncompliance. There is also legislation that provides for the fashion in which certain things should be done in the criminal justice system. The CP&EC for example provides for the manner in which an arrest should be effected. In which searches should be conducted. In which pleas should be taken, verdicts entered and judgments written. See inter alia sections 20, 20[A], 33, 113, 113A, 114, 139 and 140 thereof. There are similarly consequences for noncompliance. An improperly effected 28 arrest is an illegal arrest/detention. A detainee is entitled to a release. See section 42[1] [f] and also the case of Christie v Leachinsky [1947] 1 All ER 567. An improperly taken plea results in a setting aside of the plea. In cases of faulty guilty pleas, the resultant conviction and sentence are equally set aside. Moving from the immediately above to comment on the admissibility of illegally obtained evidence the same is inadmissible. As we have said above, these are courts of law. Their primary obligation according to section 9 of the Constitution, is to interpret, enforce and protect the Republican Constitution and all laws of this Republic[our emphasis]. The foregoing includes laws about the collection and admission of evidence. Laws about procedure in inter alia criminal trials. It is difficult, actually impossible, to envisage how these courts can claim to be interpreting, enforcing and protecting the law while at the same time allowing proceedings in these courts to proceed in a manner that clearly disregards or breaches the law. The courts would, if they operated thus, be simultaneously conducting illegal trials and clearly countenancing illegality. They would be acting contrary to section 4 of the Constitution and failing in their duty to, without exception, interpret, protect and enforce the Constitution and laws of Malawi. Not sanctioning illegally obtained evidence would also be discriminatory and plainly absurd. There would the accused person be in court answering a charge for breaking the law while the State would, in the same court and at the same time, be allowed to disregard the law without the possibility of sanctions in the name of procuring a conviction. Benefiting from their own illegal conduct. The accused would be expected and obliged to at all times obey the law while the State would be permitted to choose not just whether or not to comply but also which laws to comply with. It would place the State above the law for such application of the law is discriminatory in favour of the State but against accused persons. It is clearly against the letter and spirit of sections 20, 9 and 41[3] of the Constitution. There have of course been arguments that we are a common law jurisdiction and therefore that we should not be concerned about how evidence was obtained. Only whether it is true or not. That is to conveniently forget that there are in this jurisdiction laws, even at a constitutional level, that provide for the issues that arise around illegally obtained evidence. We have given examples above. These 29 laws bind all organs of State. The law therefore provides for the manner in which an arrest should be affected. It provides for the manner in which a search warrant should be obtained and executed. It provides for what evidence should be before court. It provides for the burden of proof, the right to remain silent and the right to a fair trial including all it entails. There is therefore no need to rely on the common law. But more than that it is not entirely true that the common law allows for the admission of illegally obtained evidence. In R v Mclilkenny & Others [1992] 2 ALL E R 417[commonly known as the Birmingham Six] there were serious doubts about the fashion in which confessions had been obtained from the accused. The convictions were quashed. We might also wish to refer to what are called the Judges Rules. They guarantee inter alia the right to silence. We are also aware of the Kara v Rep [2002] MLR 122[citing with approval the cases of Rep v Nalivata and Others and Chiphaka v Rep], and Mawondo v Rep MSCA Criminal Appeal Case No 8 of 2008[unreported] where proceeding on section 176[1] and [3] of the CP&EC this court opined that section 42[2][c] Constitution had no effect on the legality and therefore admission of evidence. We must depart from that position. Nalivata and Chiphaka are cases decided before sections 9 and 42[2][c] of the Constitution indeed the 1994 Constitution came into being. They are, except as reference material, irrelevant to the debate about sections 9 and 42[2][c] above mentioned and the 1994 Constitution in general. More importantly and again as we have said above we are in the era of constitutional superiority. The Constitution is the standard by which all legislation and acts of government are measured. Provisions of the CP&EC cannot be used to disregard the Constitution or any of its provisions. That would fall afoul of section 5 of the Constitution. There is also an argument that the rights granted by the Constitution and other laws are capable of limitations. True. The other truth though is that the State did not raise that argument in this Court. It should not therefore be for this Court to raise it on their behalf. Way after arguments have closed. That would be inconsistent with the independence and impartiality of Courts envisaged in section 42[2][c][i]. But even if there was raised such an argument it is clear on the facts 30 and law herein that no case can be made out for allowing illegally obtained evidence. Fears might also be raised that excluding illegally obtained evidence would make law enforcement difficult if not impossible. Nothing could be further from the truth. Take the instant case as an example. What was difficult or impossible about informing a coroner about the suspected death or death of Linda Gasa in order to get a permit to exhume the body? Or to submit a lawful request for an autopsy if not a want of professionalism and the belief that they would get away with illegality? Coming back to section 3 and the appeal thereon the question is whether the court below was correct in resorting to section 3 of the CP&EC to launder the illegally obtained evidence. The answer is in the negative. As we said in Namata v The Republic[supra] section 3, in conjunction with section 5 of the CP&EC, is used to cure purely technical errors. And only in instances where no injustice will be caused to the accused. The State must therefore show beyond doubt not only that the error is technical in nature but also that no injustice will be caused to the accused if section 3 is resorted to. Then and only then should sections 3 and 5 of the CP&EC be resorted to. In the instant case the errors sought to be laundered were clearly substantive. The law and the Constitution were flouted. And the State did not, except via a very tepid attempt in this court, show that the appellant would not suffer any injustice if section 3 were resorted to. The pieces of evidence in issue should therefore have remained excluded. Having agreed with the appellant that section 3 of the CP & EC was wrongly applied should the convictions against the appellant therefore be overturned? The appellant has answered in the positive. As we understand him, he contends that an acquittal should follow as a matter of course where illegally obtained evidence has been admitted. We do not agree. The correct way forward depends on the circumstances of the particular case. Where a trial court is confronted with illegally obtained evidence the way forward is to disregard such evidence and proceed to decide the case on the remainder of the evidence. If the matter is 31 raised on appeal as is the case herein the proper way forward is for the appellate court to excise from the record the offending evidence, look at the remainder and ask itself the question whether on the remainder of the evidence the allegation{[s] against the appellant is/are proven beyond doubt or not. If the answer be in the positive the conviction[s] will stand. If it be in the negative or there now be doubt whether the allegations have been proven beyond doubt the convictions will be quashed. Proceeding as above and having taken another look at the totality of the remainder of the evidence before us we have no doubt that there still is enough evidence left to sustain the conclusion that it is the appellant who caused the death of Linda Gasa? The fifth ground of appeal, except to the extent that it argues that the court below erred in resorting to section 3 of the CP&EC, fails. Ground 6 The Sentences The appellant contended that the sentences herein are excessive, wrong in principle and a miscarriage of justice. His reasoning is interesting. He argued that having shown that the convictions in this case are not sustainable as a matter of law and fact it follows as a matter of inescapable logic that the sentences consequent upon the errant convictions are wrong in principle and a miscarriage of justice. It is therefore his humble prayer that the said sentences be quashed for being excessive, wrong in principle and a miscarriage of justice. The above argument is premised on this Court finding that the convictions on appeal in this Court were entered in error. This Court has not so found. It has concluded for good cause that the three convictions entered in the court below against the appellant were well founded. It has dismissed the appeal in that regard. It follows that the appeal against the sentences premised as it was on the appeals against the convictions succeeding must itself fail. It does. 32 CONCLUSION The appeal fails in its entirety and is accordingly dismissed. Dated at Blantyre this 14** day of July, 2021. A SC SS CHIEF JUSTICE JUSTICE OF APPEAL 33 JUSTICE OF APPEAL HON J KATSALA JUSTICE OF APPEAL Wr HON. | CHATHA KAMANGA JUSTICE OF APPEAL it HON. M C C MKANDAWIRE JUSTICE OF APPEAL 34