R v Mhango (Confirmation Case 244 of 2017) [2023] MWHCCrim 18 (28 April 2023)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CONFIRMATION CASE NO. 244 OF 2017 (Being Criminal Case No. 28 of 2016 in the PRM Court sitting at Nthalire) THE STATE VERSUS KENSON FARO MHANGO CORAM: Honourable Justice T. R. Ligowe W. Nkosi, Counsel for the State H. Miseleni, Counsel for the Respondent G. Msukwa, Court Clerk R. Luhanga, Recording Officer and Court Reporter ORDER ON REVIEW Ligowe J, i Kenson Faro Mhango was convicted by the First Grade Magistrate at Nthalire of the offence of defilement contrary to S. 138 (1) of the Penal Code and sentenced to imprisonment for six years with hard labour. The Judge reviewing the file set it down for hearing to consider enhancing the sentence. The facts are that the girl in issue was found pregnant. The issue of her pregnancy reached members of an NGO called Child with Hope and Destiny. Mr Winford Mogha, Chairperson of the District Technical Working Group of the Organisation went to interview the girl about her pregnancy. He was told that Kenson Faro Mhango was the one responsible for it and that the girl was 13/14 years old at the time. This prompted him to report the matter to Police and the Respondent was arrested. tad I read through the testimony given at the trial before the Magistrate and I have no doubt that the Respondent had sex with the girl which led to her pregnancy and giving birth to a baby girl. The evidence also shows that she gave birth through caesarean section. It is the evidence of her age that I have problems with. The girl gave that evidence herself. The other one who mentioned about her age is Mr Winford Mongha. He said that when he went to Chikanga F. P. School where the girl had been schooling, he was told the girl was 13/14 years old. He checked the school register and took a photograph of the part that showed that she was indeed 13/14 years old by July 2016. He however did not bring that document as part of his testimony in court. In Chipala v Rep [1993] 16(2) MLR 498 (HC) the court said: ‘It seems to me that other than a certificate of a medical practitioner, or his oral testimony, to the effect that, in his opinion, such a person has or has not attained a specified age, or other documentary proof, or the testimony by a person who has personal knowledge gained at the time of such person’s birth, such as parents, no other evidence is receivable as proof of the age of such a person. There was no such evidence in the instant case. The complainant’s testimony as to her age cannot be relied upon because what she stated is either according to what she might have been told or she merely guessed it.” 5. In Rep v. Malanda [1987 — 89] ALR Mal 213 the court also said: “In these circumstances, the trial magistrate should send such a person to a hospital for a medical officer to determine the age of the young person or complainant child, as the case may be. Where the facilities are available at the hospital, the person whose age is to be determined should undergo X-ray examination for the purpose. Alternatively, where X-ray facilities are not available at the hospital, the parents or guardian or any other person who can testify to the age of the child should be called before the court so as to give testimony as to the exact date of birth of the child or young person.” It is obvious in this case that the girl’s own testimony about her age was hearsay. Mr Winford Mogha’s testimony about the age of the girl was also hearsay in the absence of the school register. There was before the Magistrate’s Court evidence about the age of the girl which could not be relied upon. Yet it is a strict requirement of the law that the age of the girl be proved to be below the age of 16 for a person to convicted of defilement contrary to S. 138 (1) of the Penal Code. . I find that the offence of defilement had not properly been proved against the Respondent in this case for him to be convicted. I quash the conviction and set aside the sentence. Made in open court this 28" day of April 2023. ( ~. TR. Ligowe, JUDGE.)