Moyo and Ors v People [1966] ZMHC 6 (2 September 1966)

MOYO AND FIVE OTHERS v THE PEOPLE (1966) ZR 100 (HC) HIGH COURT McCALL J 2nd SEPTEMBER 1966 Flynote and Headnote [1] Criminal procedure - Prosecution's case - Point after which no further evidence may be given. No further evidence (other than evidence in rebuttal) may be given by the prosecution after the court has reached the stage of considering whether to put the accused on his defence. [2] Evidence - Prosecution's case - Point after which no further evidence may be given. See [1] above. [3] Criminal procedure - Defence - Close of defence case at time of judgment. The defence is closed only when it has no more evidence to over; further evidence may be brought at any time before Judgment. [4] Evidence - Defence - Close of defence case at time of judgment. See [3] above. Cases cited: (1) R v Wilson (1957) 41 Cr. App. R 226. (2) Webb v Leadbetter [1966] 2 All ER 114. (3) R v Parks [1961] 3 All ER 633; [1961] 1 WLR 1484. (4) Erasmus v R (1951) 5 NRLR 136. (5) R v Sanderson [1953] 1 All ER 485; [1953] 1 WLR 392. Statute construed: Criminal Procedure Code (1965, Cap. 7), s. 193. Farley, for the appellants Cave, State Advocate for the respondent Judgment Mccall J: On 25th May, 1966, the appellants were convicted of the offence of riot by the Senior Resident Magistrate, Ndola, and sentenced to twelve months' imprisonment. From this conviction and sentence they now appeal. There were originally three specific grounds of appeal against conviction but two of these have been abandoned and the remaining one is as follows: ' 1. That the learned magistrate was wrong in law in refusing the appellants' application to adduce further evidence after the cases for the People and the accused were closed and to re-open the trial.' 1966 ZR p101 McCALL J The circumstances in which this application came to be made are as follows. On 26th April the prosecution, having closed its case, the appellants, who at this stage were unrepresented, were put on their defence. Four of them chose to remain silent, the other two elected to make unsworn statements and all six said they had no witnesses to call. The trial was then adjourned until 10th May, presumably for judgment, although the record does not specifically so state. In the meantime, the appellants instructed Mr Farley to appear for them. Thus on 10th May when the learned senior resident magistrate sat, to deliver judgment it seems, and before he had done so, Mr Farley applied for a week's adjournment for the reason, according to the record, 'to see if anything can be done to re-open the case'. There was no objection from the prosecution and the application was allowed. There was a further adjournment from 17th to 26th May when Mr Farley applied for leave to adduce further evidence. In making this application his sense of professional propriety constrained him to tell the court that in view of the decision in R v Wilson [1], his application could not succeed - a statement which clearly was not likely to inspire the learned senior resident magistrate to come to the opposite conclusion. Thus the application was dismissed. Judgment was delivered and the appellants were convicted and sentenced. Now they have appealed, and Mr Farley has very frankly stated to me that in his view of the law applicable in the circumstances - a view most confidently asserted - I must dismiss this appeal for the same reason that the court below refused his application to adduce further evidence. It is, to say the least of it, a curious situation where an appellant complains that the court below was wrong but goes on in almost the same breath to state that the court to which the complaint is made must say it was right. An explanation of this state of affairs is required and with consistent frankness Mr Farley has supplied me with one. Given the accuracy of his premises it is a not altogether unreasonable one. Briefly it is that the appellants can have no access to the Court of Appeal unless they fail in the High Court, that the Court of Appeal has wider powers on appeal than the High Court, that the High Court is bound by decisions concerning the calling of further evidence, that the Court of Appeal is not so bound and can therefore find that in relation to Zambia, right as those decisions may be for a sophisticated community, they are not right in the comparatively unsophisticated conditions prevailing here. This explanation poses important questions which may have to be answered but not until they are generated by circumstances which make the answers necessary or desirable. There are no such circumstances here. [1] [2] From the moment the application to adduce fresh evidence was made in the court below this case lost its proper direction and no one in the court below and on either side here has realised it. This loss of direction clearly has its origin in the belief that the defence had in fact closed and the learned senior resident magistrate's consent had to be obtained to re-open it. It seems to me that this belief was induced first, by reference to authorities which dealt with the question of fresh prosecution evidence being called after the case for the prosecution has been closed. It was then 1966 ZR p102 McCALL J thought that the defence having closed the same principles as apply to further prosecution evidence should apply to further defence evidence. This is wrong on two counts. First, it is to my mind beyond doubt that while the defence appeared to have been closed on 26th April, the appellants having had their say and having stated that they had no witnesses, such was not the case because on 10th May and before judgment, the appellants, through their counsel, stated they wished to call further evidence. Thus the earlier appearance that the defence had been closed was changed and in fact it was not closed. Secondly, the identification of the point at which the case for the prosecution and the defence closed is different for each case. The prosecution case is closed at the latest when the court has reached the stage when it has to consider whether or not to put the accused upon his defence. Thereafter no further evidence for the prosecution other than evidence in rebuttal (with which I am not concerned here) may be given. The principle of this is obvious. The accused, if called upon, is required to defend himself upon the evidence given against him. This he cannot adequately do if he can only defend himself not knowing all that evidence and this would be the situation if after the defence is closed the prosecution could come in with more evidence. [3] [4] But the point at which the defence in fact closes is in no way so precisely regulated. It closes when the accused in fact has no more evidence to offer. The principle of this is even more obvious; an accused person in our system of justice must, subject to the rules of evidence, be allowed to have as much evidence heard in his defence as he pleases. It should not be necessary, but it may be desirable to add that when I say that the defence closes when the accused has no further evidence to offer I do not go so far as to say that when each witness for the defence has completed his individual evidence there is a right to have him recalled and so offer more evidence. In my view there is no such right and if there were a defence would tend to become interminable. The further evidence I refer to is confined to evidence from further witnesses only. So in the case before me I find that the defence had not in fact been closed, that on 10th May no application for further evidence to be heard was necessary, that as it was made, its only justification was one of courtesy and that in any event it was completely wrong to refuse it. There is no discretion in these circumstances so no question of wrongful exercise arises. Section 193 of the CPC was not complied with. All admissible evidence sought to be given on both sides must be heard before judgment. That did not happen here. The appellants sought to give evidence before the defence was closed in fact. The learned senior resident magistrate did not ask nor was he told, the nature of this evidence. It is only here that I am told that it is alibi evidence and thus clearly admissible. It should have been heard and the refusal to do so amounts to a serious denial of the right of the appellants to defend themselves. The State has supported the conviction. Having regard to what I have already said only one of the grounds upon which this support rests calls for reference by me. Mr Cave relied upon the principle that where evidence is available to an accused person at his trial and he does not call it he cannot be permitted to have it heard after 1966 ZR p103 McCALL J his trial is over. That the evidence was available in the sense that it was known to the appellants from the start and could have been called by them is conceded by appellants' counsel, but that is to state the principle too narrowly. Evidence available to an accused person at his trial means not only evidence the existence of which he is aware but also the capacity to call it. The learned senior resident magistrate denied the appellants that capacity whereupon it ceased to be available and consequently the principle does not apply. There is one other matter to which I must refer and that is the cases referred to by the appellants and the State. These cases were R v Wilson earlier mentioned, Webb v Leadbetter [2], R v Parks [3] and Erasmus v The King [4]. The first two of these were referred to by Mr Farley but only for the purpose of satisfying me that I should follow them and so get his appeal before the Court of Appeal, and the second and third were relied upon by Mr Cave as ones which precluded me from allowing the appeal. The first two of these cases deal with the question of calling further prosecution evidence after the defence has closed and have no application to the facts involved here. R v Parks deals with the question of calling evidence unknown at the trial after conviction. That is not the situation here. Erasmus v The King deals with the meaning of the expression 'not available' at the trial. It defines two situations in which evidence can be said to be not available. But it does not decide that these are the only ones and it certainly does not decide that evidence wrongfully excluded at the trial cannot later be said to be not available. These two cases also have no application here. I have been told that it has not been possible to discover any authority concerning a prohibition against calling further defence evidence after the defence has closed and before judgment. I am not surprised. One might as well look for an authority which decides that evidence for the defence shall be given before evidence for the prosecution - a decision not very far more unthinkable than the one in respect of which this appeal is made. There is, however, a decision which comes close to the case here. It is R v Sanderson [5]. In that case the defence had in fact been closed and the summing up completed. Even then it was held that the calling of further evidence for the defence could in the circumstances of the case be justified. This case concerned a trial at quarter sessions and is not therefore on all fours with the one before me but it is more than sufficient to satisfy me that if evidence for the defence may be adduced before conviction - and that, I think is how this authority should be applied in a trial before a subordinate court here - then a fortiori it must be permitted before judgment. Mr Farley expected, I will not say hoped, he would lose the first two battles and win the last one. In the result, however, he has won the second. I hope he is not disappointed. It is open to me to quash this conviction or order a retrial. Having regard to the gravity of the error made I have seriously considered the former but I think on balance that the justice of the case would be better served if I take the latter course. The appeal therefore is allowed, the conviction and sentence are set aside and I order a retrial. Appeal allowed