R v Abdullah & 8 others (Criminal Case 4 of 2017) [2019] MWHCCrim 6 (2 August 2019)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL CASE NO. 4 OF 2017 THE REPUBLIC V ABDUL REHMAN ABDULLAH MAHOMED FAROOK IBRAHIM RIZWANA ABDUL REHMAN ZARINA MAHOMED FARUK ABDUL KADER PATEL MAHOMED FAIZAL PATEL SPENCER ZINYEMBA WILLIAM KUMWENDA WYSON TUMBA CORAM: THE HON. JUSTICE MR S. A. KALEMBERA Mrs Kachale, Director of Public Prosecutions, of Counsel for the State Mr Likongwe, Public Prosecutor, of Co- Counsel for the State Mr Masanjala, Senior State Advocate, of Co-Counsel for the State Mr Maele, of Counsel for the 1st and 3rd Accused Mr Nampota, of Counsel for the 2nd ,4th ,5th , 6th and 7th Accused Mr Banda, of Co-Counsel for the 2nd ,4th ,5th ,6th and 7th Accused Mr Mwala, of Co-Counsel for the 2nd , 4th, 5th , 6th and 7th Accused Mr Mhango, of Counsel for the 8th and 9th Accused Mrs Chanonga, Official Interpreter Miss Mombera, Court Reporter RULING Kalembera J 1.0The 1st and 3rd Accused persons, Abdul Rehman Abdulah and Rizwana Abdul Rehman (Applicants), have brought an application under section 302A of the Criminal Procedure & Evidence Code (CP&EC) that they be discharged from prosecution on the following charges: Conspiracy to Defraud and Obtain Credit by false pretence contrary to sections 322 and 323 of the Penal Code respectively, upon the expiry of the maximum period within which offences punishable with less than three years imprisonment with hard labour may be tried. The State is objecting to this application. 1.1It has been deposed that the said Applicants were arrested in September 2017, whilst the other Accused persons with whom they are jointly charged were arrested earlier this year. Am sure they meant earlier in the year 2017. They took plea on the 28th day of May 2018. It has further been deposed that these proceedings commenced in September 2017 when the Applicants applied for bail in the High Court. 1.2It has further been deposed that more than 12 months have passed since the trial herein commenced. And that the trial of the Applicants herein of the offences of Conspiracy to Defraud contrary to section 323 of the Penal Code and Obtaining Credit by false pretences contrary to section 322 (a) of the Penal Code has therefore become statute-barred. 1.3It has further been argued by the Applicants that the State is at fault for the delay in the conclusion of the trial of the Applicants of the charges specified in this application. And that the Applicants cannot continue to be tried of these charges. And they must be discharged. 2.0As earlier observed, the State objects to this application. It has been deposed for the State that it is a misrepresentation of the law to state that the law provides that trial for matters triable by Magistrate courts whose punishment is imprisonment of not more than three years should be completed without qualification within 12 months from the time oc commencement. And that the trial of the Applicants on the referred to charges under sections 323 and 322 (a) of the Penal Code are not statute-barred. 2.1That since the Applicants are answering to both felony and misdemeanor charges, it would not be a correct reading of the law to discharge the accused on the misdemeanor charges only and continue with the felony charges. And that the evidence against the accused persons in the trial, including the Applicants, is the same, the offences having been committed in the same transactions, and the State is parading the same witnesses to prove both types of offences. 2.2That the delay in this case can be attributed significantly to the objections by the Defence which led to the setting down of the trial for three days per week. Thus, the State contends that there is no delay in the conclusion of the trial of the Accused persons including the Applicants herein as the 12 month time limit within which to conclude this trial does not apply to this trial. 3.0The main issue for the court’s determination is whether the Applicants must be discharged from prosecution on the charges specified in this application or not. 4.0Section 302A of the CP&EC provides as follows: “s.302A –(1) Subject to subsection (2) and (3), the trial of any person accused of an offence triable by the High Court other than any other offence punishable by imprisonment of more than three (3) years, shall – (a) be commenced within twelve months from the date the complaint arose; and (b) be completed within twelve months from the date the trial commenced. (2) Where the accused person is at large the period prescribed by subsection (1) within which to commence the trial shall run from the person is arrested for the offence. (3) Where the cause of the failure or delay to complete the trial within the period prescribed by subsection (1) is not attributable to any conduct on the part of the prosecutions, the court shall order of time as it considers necessary to enable the completion of the trial. (4) A person accused of an offence shall not be liable to be tried, or continue to be tried, for the offence if his trial is not commenced or has not been completed within the period prescribed by subsection (1), and in such a case the accused shall stand discharged of the offence at the expiry of such period.” 4.1And section 261(1)(b) of the CP&EC is in all material aspects similar to section 302A, except where it refers to an offence triable by a subordinate court. 4.2 In the matter at hand the trial of the Applicants and their co-accused commenced on the 29th day of May 2018, when the Applicants and others took plea. Initially, the Applicants and their co-accused were supposed to take plea on 26th February 2018. The same did not materialize because the Defence raised several objections against the charges. Eventually, trial commenced on the said 29th May 2018. The Defence prior to commencement of trial objected to having the court sit for five days in a week, and this court granted their prayer and ordered that trial be for three days in a week. There have been objections and applications from both the State and the Defence which have led to the court adjourning for ruling, thereby delaying the hearing of the matter. 4.3And on 1st July 2019, the court failed to proceed with trial because of this application. The court must be fair to both parties hence entertaining applications from both parties and making determinations on the same as required. It would therefore not be fair to conclude that the delay in concluding this trial within the stipulated time limits, if at all, is wholly due to the conduct of the State. I would safely conclude that it is more due to the conduct of the Defence. But then, as earlier observed, fair trial entails, the court giving opportunities to either party to make applications they deem necessary. However, neither party must lose sight of the fact that such applications will and have inadvertently led to delays. It is therefore unfortunate for one party to accuse only the other of causing such delays. 4.4Everything being equal, and there being no disruptions, the framers of sections 302A and 261 of the CP&EC, expected or envisaged trials where these provisions applied, to be commenced and completed within the stipulated times. As I have observed herein, the trial, as expected, hasn’t been without any disruptions. Hence it wouldn’t be expected to commence and be concluded within the specified periods. 4.5In the matter at hand the court has also been referred to section 127 of the CP&EC which provides as follows: “s.127 (1) Any offences, whether felonies or misdemeanors, may be charged together in the same charge if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or similar character.” The Applicants herein are charged with both felonies and misdemeanors. And the court recalls, in its ruling of the 14th day of February 2018, that Counsel for the Applicants had strongly argued against the State’s prayer to sever the charges against the Applicants and their co-accused. Counsel wanted all charges in relation to all the other banks to be tried together. Those charges, just like the charges herein contained misdemeanors and felonies. 4.6 With that in mind, a clear and practical reading of sections 302A and 261 of the CP&EC, will have the effect that, in such a case, it would be impractical to apply those provisions and discharge the Applicants from the misdemeanor charges. All the offences charged are claimed to have occurred as part of a series of offences of the same or similar character. The cited provisions would therefore not be applicable. 4.7 All in all, on the observations herein, the delays in this trial cannot wholly be attributable to the conduct of the State. The Defence should also shoulder a fair blame for the delay. The Applicants having been charged with a combination of misdemeanors and felonies, arising from or forming part of a series of offences of the same or similar character, sections 302A and 261 of the CP&EC not apply and the application must fail. Consequently, I dismiss the Applicants’ application in its entirety. The trial should proceed. PRONOUNCED this 2nd day of August 2019, at the Principal Registry, Criminal Division, Blantyre. S. A. Kalembera JUDGE 6