R v Christopher Wyson (Confirmation Case No. 702 of 2010) [2010] MWHC 16 (3 March 2010)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY Confirmation Case No. 702 of 2010 THE REPUBLIC Versus CHRISTOPHER WYSON Coram: HON. JUSTICE MANDA Mrs Mbendera for the State Defendant (Deceased) Mrs Matekenya Court Clerk ORDER ON CONFRIMATION This matter was set down to “consider the existence of a charge of „armed‟ robbery.” Unfortunately, my brother Judge never explained himself beyond making this statement, so I could not really tell what he felt was the problem in this case. Nevertheless I shall endeavour to look into his query by actually looking at the facts in the present instance. I should also point out that since the convict is now deceased this order is being made for directional purposes. The facts of this case are that on or about the 22nd day of August, 2009, at Montfort Police Unit, in Chiradzulu District, being armed with a Panga knives [emphasis mine], Christopher Wyson and two others robbed one Sub-Inspector Kapesi of a short gun, 127 rounds of live ammunitions, 20 Tear Gas Canisters, one Malswitch Fuel Card and cash amounting to K4 000. The evidence that was given in the Court below was that the convict in the company of his two friends went to Montfort Police Unit on the pretext that the convict was a victim of a robbery in which his phone was stolen. This was around 2315 hours. On arrival at the Police Unit the trio met Sub-Inspector Kapesi (PW1 in the Court Below) who was on duty that night. Upon hearing their fake story Sub-Inspector Kapesi did not believe them and as such wrote them a note so that the three should report the matter to the police the next day, 23rd August 2009, together with Group Village Headman Njeremba. Apparently Sub-Inspector Kapesi did this because the convict and his two friends had informed him that they had been referred to the police station by Group Village Headman Njeremba. Indeed it would seem that Sub-Inspector Kapesi‟s intentions were to have the Group Village Headman verify the story that the three men had narrated. It was PW1‟s evidence that as he was about to stamp the letter that he had written he was grabbed by one of the three men grabbed him while the others produced panga knives. He then proceeded to state that the convict herein tied his hands and legs and forced him to lie down and threatened to kill him if he shouted. The three then proceed to break into the storeroom and the Officer-in-Charge‟s office and made away with the items I have already mentioned. In concluding his evidence, PW1 told the court below that the convict herein was arrested after being found with a tear gas canister, which was identified to have been the one that was stolen from Montfort Police Unit. The evidence that the convict herein was found with the stolen Tear Gas Canister was confirmed by And Dishon Kaliyali (PW2 in the Court Below). PW2 was part of a group of people that arrested the convict herein after the latter had entered into PW2‟s premises without authorisation. It was PW2‟s evidence that as he was about to confront the convict as to why he had entered into his premises, the convict started running away and in the process threw the tear gas canister at the people who had responded to PW2‟s call for help in arresting the convict. The convict was arrested, which fact was confirmed by PW3 Solomon Phinifolo. There were of course other witnesses that gave evidence against the accused but I will go into their evidence as I do believe that for purposes of this hearing, the evidence I have summarised goes towards answering the question that was posed by my brother Judge as well as inform me on the issue of sentence. In terms of law, the definition of the offence of Robbery is provided for in Section 300 of the Penal Code, which states that:- “any person who steal anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, shall be guilty of the felony termed „robbery‟” According to Section 301 of the Penal Code, any person who commits the offence of robbery shall be liable to imprisonment for fourteen years. Indeed for all intents and purposes, Section 301 of the Penal Code is a punishment section and hence it could be said that the same is not supposed to „define‟ any offence. However, Section 301 does continue to state as follows:- “if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person, he to be punished with death, or with shall be imprisonment for life” liable From the manner of drafting the above quoted words are to be taken as a proviso to Section 301. In this regard then, the proviso can only be deemed to be referring to aggravating circumstances, which are only applicable when sentencing and not when charging an accused person. However the question does become as to whether it is within the accused person‟s rights to be informed of the exact nature of the offence that he or she is being charged with? The obvious answer is of course yes, the accused has that right. Having answered this question in the positive, the next step in then how do we go about informing the accused of the nature of the offence he is facing? In this regard, the matter becomes one of description of the offence and it becomes imperative that there must be an accurate description of the offence an accused is facing. This is more so when it comes to robbery because it is committed in „degrees.‟ The practice in Malawi has always been that where one commits the offence of robbery while being armed with a dangerous or offensive weapon, then the offence charged has to be one of armed robbery. Indeed I do not see anything wrong with such a practice in that it provides the accused with a clear description of the offence that he is facing. In this regard, it goes without saying, that it is now well settled that guns and panga knives are dangerous and offensive weapons. Indeed one of the synonyms for the word „armed‟ is „carrying weapons‟. Thus in a clear cut case where there is evidence that the accused was carrying a weapon, like it was in the present instance, I do not see why a charge of armed robbery cannot exist. In the present instance there was uncontroverted evidence that the convict and his two colleagues were armed with Panga knives when they robbed the police unit. Indeed there is also evidence that they threatened PW1 with those Panga knives before they proceeded to rob the police station. In this regard I would want to believe that the charge of armed robbery was established. Of course I must state that there is a decision by Chipeta, J in Rep v Mavuto John Kabango and Charles Stewart Simion Conf. Case No 623 of 2007, which was cited to me in which the Judge observed that a more appropriate title to a charge in that instance, should have been one of „aggravated robbery‟ as this is it covers different styles of more encompassing committing the offence of robbery. Of course I must distinguish in that that case from the present because in this instance there is evidence that the convict and his friends were armed. I must however agree with Chipeta, J., in observing that it will not be in all cases where the charge of armed robbery will be appropriate as the same is only specific to cases where the suspects were armed with dangerous and offensive weapons during the commission of the offence. In all other instances, variations should be made by proffering charges of Robbery with actual violence or threats of violence. Thus, in this regard, I must differ with Chipeta, J., that the charge should be one of „aggravated‟ robbery. The reason for my difference is precisely because the word „aggravated‟ is more encompassing and in my view lacks certainty in terms of giving the accused a clear picture of the exact offence he is facing. Thus if I were to offer any direction in this regard, I would state that the proper charges should be robbery „with actual violence‟ or „with threats of violence‟, which I believe are more specific and will not need further explanation, save for describing what happened in the particulars of the offence. It must be noted that by definition, aggravated robbery is the taking of property from the person of another by use of force or intimidation. In this regard aggravated robbery can also encompass armed robbery, which is why I would want to believe that precision will be required in the drafting of the charge. As for the existence of the charge of armed robbery, in the present instance, my finding is that the same was clearly established by the evidence in the Court Below. Indeed the charge does exist in Malawi and the practice has always been to charge someone who commits the offence of robbery while being armed with a dangerous and offensive weapon like a Panga Knife, with the offence of armed robbery. I thus proceed to confirm the conviction in this instance. As for the sentence, this offence was clearly planned. Not only that, it was committed in a brazen manner. As noted from the evidence, the convict and his accomplices did not just rob any ordinary building or house, they robbed a police station. In this regard they must have anticipated that they would meet some resistance and possibly be shot in the process. The risk was therefore quite high. The fact that the convict and his accomplices proceeded to commit this offence despite the risk that was there clearly showed that this offence was carefully planned. Indeed the same is clear from the fact that they actually came up with a fake story that the convict had been robbed. Indeed the fact that the convict and his friends attacked a security institution which was set up to protect the community, thereby rendering it helpless, shows the brazenness of their act. In this regard, I do believe that a stiffer punishment was indeed warranted. However since the convict died, I will just stop at making this observation as regards the sentence. Made in Open Court this...............day of...............................................2010 K. T. MANDA JUDGE 6