Luwe v R (Criminal Appeal 78 of 2016) [2018] MWHC 940 (8 February 2018)

·· -- -, Moses Luwe v T!w Republic Criminal Appeal No 78 of 2016 MzHC ., .. -........ ~--... ........ ~ ......... ,. HlGH COUR"· t,.fBRARY REPUBLIC OF MALAVVI IN THE HIGH COURT OF MALAWI MZUZU REGISTRY: CRIMINAL DIVISION CRIMINAL APPEAL NO. 78 of 2016 (B eing criminal case No . 89 of 2015 in the First Grade Magistra te Court Sitting at P.umphi) Between Moses Luwe ..... . .............. ................. ...... . .. . ..... ... .... .. ...... .. Appe!lant -and- The Republic .. .... .. ... ... .. ................... .. ..... .. .. ...... ....... ..... .... Respondent -·----·--- COR.fiJ\n: HOUNOR/iJ3L. E:: JUSTICE D. A. DEG. ABRIELE rViL C:. Shaibu r..,lr. i'1. rvidazizlra Mrs . L. rviunthali Mm. J. Chirvva Counsel for the State Counset for the Appellant Official Interpreter Court Reporter DeGabriefe, J Introduction JUDGEf\11ENT ON APPEAL The appe:l!ant was charged, tried ar.d convicted of the offence of defiiernent contrary to sectio n i38 (i} of the Penai Code . He was sentenced to 12 and half years irnprisorni,snt 'Ntth hard labour frorn the date of arrest which was the i 4th fa,pri!, 2015. f-1e is appeo!lng against both the convicti on and sentence . • The grounds of appeal are that; a) the. conviction vvas unsafe b(~cause there vJa.s no sufficient e·vide·nce c,ffered by state of prove the case beyc;nd rec1sonable doubt. b) tl1e sentence vvas rnanifest!y exce·ss!ve - Moses Luwe v The Pepublic Criminal Appeal No 78 of 2016 Mzl-lC Appeals in the High Court The Malawi Supreme Court of Appeal laid down the principles that ought to be followed when hearing appeals in the High Court. The Supreme Court held in the case of Pryce v Republic (1971-72) 6 ALR (Mal) 65, that "In our opinion the proper approach by the High court to an appeal on fact from a magistrates' court is for the court to review the record of the evidence, to weigh conflicting evidence and to draw its own inferences. The court ... must then make up its own mind, not disregarding it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong'1 • Therefore, after perusing the record of the lower court, the High Court would come to a conclusion of whether or not there was sufficient evidence to justify the finding of facts and law of the lower court. The Evidence PW·1 was the victim, who was defiled when she was 6 years old. She gave unsworn testimony. Her evidence was that the appellant defiied her in a millet garden when she was coming from school. lmrnediate!y after, she had told NyaKumwenda of what had happened. She said her private parts \Nere painful. She also told the court that the appellant had done this on three occasions and the appellant had threatened her that if she disclosed what was happening he was going to beat her. There was no cross examination from the appellant. PW2 \Nas NyaKurnvvenda who to!d the court that on the material day she 1,,vent to draw \. Vale:· and met the appellant and they greeted each other. Immediately after th2t she sav: PVV, and asked hsr a few questions. PVV1 then d:sc!osed that the appeliant had defiled her in the mi!iet garden and tock P\/\/2 to go and see the place. PV\/2 stated that she S3.\N rnarks printsd bv the knees. She then VJent and told the rnother to take • J the chi!d to the hospital for a check-up . There was no cross examination from the appellant. - - Moses Luwo v The Republic Criminal Appeal No 78 of 2016 MzHC PW3 wtw the mother of the victim who told the court that the victim was now 7 years o!d. Sita told the court that on 28111 May 2014 PV\/2 informed her that her child had been d~rHi=l d by the appellant. She examined the child's private parts and established that l1gf Vt;1gina was wider than her age . She took th e child to the hospital. The appelll?i\l t@n away. T he medical officers confirmed that there was penetration. The ~ ~ ·. .. appollfMil ~v,1s in hiding for almost a year. In cross examination, PW3 stated that he hc1cl to!~ 11'1 appellant that evidence would come from the hospital to confirm what he did nn(Ii!lj did not know where the appellant had gone after that. PW'1 WlfJ{Jl~ cou rt that the incident occurred in 2014 but the appellant was at !arge . He w~8ff~cHed in 20 15 and was brought to court on the charge of defilement. The wit1ltHilti l{ !UMed the caution statement and the medical report. ·; '; · · DW1 wd l!l~ appellant himself who told the court that he had gone to his garden on 28 111 Mli\y ~0 14 to water his crops and he returned home. He states that he heard that he wti!.1 !Jijln(i accused of defiling PV\/1 . He waited for the parents of PV-J1 and the •· poli ct'.i lclild 'nothing happened. After one month he !eft for Mzuzu for shopping . He said th~1t 11otlil11g was done by the poiice 2nd the parents until the year 2015. In cross ex;:11nim1ll(!fL l\e stated that he was at home al! the time the incident occurred . He also told 111Q o(HJtl that he had tried to escaped from a moving vehicle after he had been arrnotacL DW2 wo~ /(,;;nnedy Luwe, the father- of the appellant who told the court that he was no! n wiinl;ltil: to the appellant but rather he had the appe!!ant arrested because he f:1· tJ()2t from him. He also said that on the material day, he v1as at his home ha d olnl011 and 110 did not know where the appellant was . DVV3 w:1::: 11',lhi,C f<amanga who stated that he knevv the appeliant but that he was not a vvltl1(1~t.:t to U1r~: c!1arge. he v..:a s facing. 0\/\/3 stated that he had repo-rted the issue of du fi! om oi\l !(JI! te police and the matter was left in their hands. - Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC The Law and analysis of the evidence In any criminal matter the State has a duty to prove the case beyond reasonable doubt. In the case of defilement, the State has to prove every element of the offence. Section 187(1) of the Criminal Procedure and Evidence Code provides that, "The burden of proving any particular fact lies on the person who wishes the court or jwy as the case may be to believe in its existence, unless it is provided by any written law that the proof of such fact shall lie on any particular person. Provided that subject to any express provision to the contrary in any written law the burden of proving that a person is guilty of an offence lies upon the prosecution." The law stipulates that the burden of proving that a person who is accused of an offence is guilty of that offence lies upon the prosecution. Further, under sub-section (2) of the above section the law places the burden of proving any fact necessa ry to be proved in order to enable any person to give evidence of another fact is on the person who wishes to give such evidence. A court of law will, on being satisfied that the case has been proved beyond reasonable doubt convict a person charged with a crime. ~ Failir;g-to-pro11-e-a-criminal matter to the requisite standard of proof beyond reasonable doubt wi!i lead to an acquittal, see OPP vs Vloo!mington (1935) A . G. 462 The appe!iant was convicted on the offence of defilement contrary to section 138 ( 1) of the Penal Code. The section stipulates that; "Any person who unlawfully and carnally knows any girl under the age of .> sixteen years shall be guilty of a felony and shall be liable to imprisonment for life". The basic elements for the offence of defilement are that the victim must be below the age of 16 years, that there was unlawful carnal knovvledge and that there \Vas penetration of the ma!e sexual organs :nto the female sexual organs of the victim and that the perpetrtttor n1ust have knovvn that the victirn \/Vas under the age of 16 years. - Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC In the case of The Republic v Bu/aziyo (1997) 1 MLR 212 (SCA) the supreme court of appeal said as follows; ')et it be remembered lest we lose out on the elements of rape and rape related offences vvith imaginations that rape and defilement offences are reminiscent of one thing in common for the offences to be sustained. There has to be proof by the prosecution or the complainant of penetration". The courts in Malawi have he!d that medical reports are not the only way through which penetration can be proved . In the case of Seda v Republic (1997) 1 MLR 386 Chimasula Phiri J as he was then, stated that "it was not necessa,y to prove penetration through a medical report only ... there was corroborative evidence from the elder sister of the complainant who examined the complainant's private parts immediately after the rape was committed. There was evidence of penetration and of sernen and blood coming from inside the vagina." The evidence before the lower court showed that there was penetration which was established by the examlnation of the victim by PW3. It is trite that penetration , however slight and whether or not there is semen, is sufficient to prove the offence of defilement. The appeilant has argued that the m~dical report in this case was untrustworthy as the examination was conducted after a year. To begin with, this Court agrees with the statement of Madise J in the case of Andrew Phiri v The Reoublic Criminal Avo ea.l f • ' No. 63 of 2009 where he stated that; "ft is trite iaw that rape or defilement can be proved without the support of medical evidence. Elderly women can easily deduce that a girl has be en defiled. This has been the tradition or the !av/ in this F:.'epublic. However, the law demands that there must be corroboration of the victim;s stoty'' This court finds that even if the rnedicai report \. Vas done at a later stage, penetration had been proved already . \Nhi!e th e request fo.- medical exa mination was mad e on ., - Moses Luwe v The F?epublic Criminal Appeal No 78 of 2016 Mzl-/C 17th /l,pril 2015, the court notes that behind the page, there is an explanation and examination that took place on 29th August 2014. Further there is an entry on 9 111 August 2015. This looks to me as a report that was being used and information was added as the matter proceeded. An examination of the report shows that the face of it was the medical reports of one Zgambo and it shows that some documents had been pinned to the top left-hand corner. The letter of request was then authored later on the backside of the medical report, and the response to that letter of request is dated 9th August 2015. Regardless of the mixed dates and the delays for the examination, I stil l find that penetration was proved on the day the incident occurred . The appellant has argued that the evidence of PV\/1 was not corroborated as required under section 6 of the Oaths, Affirmations and Declarations Act. Corroboration is defined as any other independent evidence which supports or confirms the victim story or a particular fact that an offence vvas committed and it was so committed by the accused, see the case of Tinazari v. R 3 A . LR. !v1af. 184. The courts are calied to warn themselves of the dangers of convicting an accused in the absence of corroboration in sexual offences . A conviction is 1..veli founded if there is corroboration. Again, where there is no corroboration and the court has warned itself, and is satisfied that the ev:dence of the complainant is compeillng, the court may still convict and the conviction wi!i be found to be safe . I have looked at the record of the lower court. l find that the lovver court was aware that the testimony of P\/V1 was given as unsworn testimony because of her tender age of 7 years. On page 14 of the judgement of the lower court, the court held that the ., evidence of PVV2 and F·VIJ3 2s \\'eii as the medical report was corrobmative of the · victim's evidence. While the lmver court did not warn itself of the danger of convicting without corroboration, it did in fact dfscuss and find that the evidence of the victim was corroborated and tl1erefore con\ticted the appe!lant. It rnust be ren,..1en1bered that • corroboration in sexual offences though not a matter of !av,1 is by lega! tradition a rnatter of practice. ! find that the absence of the actual v1arning did not prejudice the - Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC appellant because the evidence of P'N1 was found to have been sufficiently corroborated. I find that the evidence of PW2 confirmed the victim's claim that she had been defiled by placing the victim and the appellant at the same time and seeing the scene of crime with the knees im printed in the sand or soil. The argument by the appellant that in May the ground is hard and dry does not make sense because it still is raining in the Northern Region of Malawi. The ground is normally still soft. The evidence of the victim was further corroborated by the mother PVV3 who examined the girl and found out that her vagina was wider th an is normally the case for her age group. The evidence of PW3 also corroborated that the victim was indeed 6 years old when the offence happened. The appellant has argued that the victim did not cry or cal! for help when she was being defiled and that the victim walked without difficult after the ordeal ; meaning that she was not defiled. The evidence of PW3 and the medical report shows that there was penetration. Further, it was the evidence of PW1 that the defilement occurred on 3 occasions, an in that case she may have had pain but not as much as the first time it happened. The appellant did not cilalienge this evidence at all. From this evidence, ! find that the unsworn evidence of the victim was sufficiently corroborated and the lower court was right in convicting the appellant. The appellant argues that the evidence before the IO\ver court vvas contradictory and cites the case of f(agwa v The Repu,bfic 14 MLR 138,145 which held that where the prosecution evidence on a particular rnatter by two witnesses or more and that evidence is contradictory, any doubt raised by such contradiction must be resolved in the accused person's favour. The applicant claims that the offence was allegedly committed on 23th May 2014 but PVV1 did not stated the date when the offence occurred. FLli"ther he states that PVV2 stated that the offence occurred on 29th May 201 -4, and P'V\!3 stated she \Nas told 23th r\~(iY 2014. He argues that the investigator never gave tlle e\:idence of vvhen this offence occurred. He also argues that the letter fo: examination to the District Health Officer was written on 17tti Aprii 2015. The ., - Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC appel lant claims that this should have raised doubts in the mind of the court on whether or not the offence had occurred. I have looked at the evidence and agree that the dates in the whole case are not well articu lated . However, the evidence as a whole show that on the material day, the 23th of May 2014, the offence of defilement took place. The appellant stated in his own evidence that after his garden he went home, but his purported witness, his father who was DW2 stated that he was at horne but the appe llant was not at home. The appellant did not himself question the dates in the evidence of PW1, P\/\/2 and PW3 . He acknowledges that on the material day, 28th May 20 14, he was at his garden . Therefore, it is clear that there was no doubt as to the date. The appellant himself was abie to confirm the date of 23th May 2014 as the right date . Had the appellant disputed the date or shown that he was not in the village on the material day, then there would have been some doubt which the court would have resolved in his favour. I do not find that the lack of clarity on the dates was an irregularity which was fatal as to occasion a faliure of justice. The appellant was not prejudiced in any way . The appeliant has attempted to show that he is not the one v,1ho committed the offence . The evidence shows that he vvas in the vi!!age and at the gardens on 28th May 2014 . He was also aware that he was being accused of defiling the victim. His story that he waited around for a month and nothing was done so he let to go to Mzuzu for shopping vvas unbelievable. It was more probable than not that after he heard that he vvas being accused he run away. This is solidified by his evidence in the lower court that when he was arrested he even attempted to escape from a moving vehicie. This shows hovv desperate he was that he should not be caught. The appellant called witnesses who could not vouch for him at ail. His ovvn father stated that he had the appellant an·ested from stealing a goat from him . This shows that the appellant 1Nas not an honest and uprigl,..it n-ian. The 2ppetiant c!airned that he \,vas horne but t--1is ovJn father stated that he \Vas home and the appe!lant was not at home, supporting the fact that thr'.;~ appellant ran av1ay after he vvas avvare that fact of defilen1ent vvas novv knov,n1. One v;cnders h0\/1/ 2 persceit can go to i\/1z.uzu for shopping. and stay a\lvay for a period () - - Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC of nearly a year without returning with the shopping. I therefore find that the circumstantial evidence is made stronger by the appel!ant's own evidence and conduct to show that it was the appellant who defiled the victim. Therefore, I find that the appeal against conviction fails in its entirety and the conviction by the lower court is hereby confirmed. The appellant has appealed against the sentence, stating that it was excessive in the circumstances. The offence of defilement is punishable by a maximum sentence of life imprisonment. Under section 340(1) of the Criminal Procedure and Evidence Code the laws provides that first offenders must be considered for non-custodial sentences as outlined under section 339 of the criminal procedure and Evidence Code, unless such a non-custodial sentence is not the appropriate means of dealing with the convict. The reasons for deciding on a custodial sentence must be well articulated in the record. While it is plcl usible that a serious felony can be punished by a suspended sentence where there are strong mitigating factors to support such an acfon, :tis rare that courts will impose suspended sentences for serious offences. In the case of Rep v fv7akanjifa [1997] 2 ML. R 150 HC, Mwaungulu J as he was then, quoted with approval the words of Ewbank J in the case of R v Richardson and Another The times 10 February 1988, that "there are some crimes so heinous that a plea of youth, a plea that the crime ~vas a first offence or that the prisoner has not been to prison before are of little relevance. Those who participate in them, even if they pleaded guilty, even if they were young, even if they have no previous convictions, even if the victims \Vere not brutalised in the presence of young children, should know that they \Vil! be subjected to long and immediate custodiai sentences. ff the victims are young or old, the sentence would be even longer." This is one such a case v:here a custodial sentence is the appropriate way to deal vvith the offender. A sentence rnust fit the offence and the offender but also reflect the genera! feek1g of the pub!ic and not outrage the public's sense of morality. .. - ,, Moses Luwe v The Republic Criminal Appeal No 78 of 2016 MzHC The appellant was 22 years old when he committed the offence and he was a first offender. However, the offence is aggravated by the fact that the victim 1. Nas 6 years ' old, the appel!ant had defiled her on 3 occasions, and the ~ppellant had escaped justice for a period of, almost a year. Indeed, it was held in the case of The Republic v Kathumba (1997) 1 MLR 390 that where the offenders are young and first-time offenders, the court must always remember that a shorter sentence could be just as effective as a longer sentence . Looking at the case before me, the aggravating factors outweigh the mitigating factors . In the case of Kingstone Kambalame v Rep Criminal Appeal No 39 of 2009the appellant was on his own 'plea of guilty convicted of the offence of defil~ment and sentenced to 12 years imprisonment with hard labour. His sentence was only reduced to 9 years imprisonment on account of his plea of guilty. The appellant herein did not piead guilty. The appellant herein was sentenced to 150 months in1prisonment out of 2:. maximum of life imprisonment. I find that in the circumstances of this case, the sentence vvas not manifestly ~xcessive. Therefore, I confirm the sentence, . as passed by the lower court; the appellant will serve 150 months imprisonment with hard labour with effect from 14th April 2015 which was the date of his arrest. The appeal against the sentence tails in its entirety. f\o1ade in Chambers at MZUZU REGISTRY this gtn day of Fepruary 2018 JUDGE -