R v Msosa (Confirmation Case 642 of 1994) [1993] MWHC 22 (14 September 1993)

(.' IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CONFIRMATION CASE NO. 642 OF 1993 THE REPUBLIC versus ASSANI MSOSA Cora m: CHATSIKA , J. Ch atha (Mi ss ), State Advocate Ac cused, absent, unrepresented Mt huk a ne , Se ni or Law Clerk Lo ngwe , Court Re por te r ORDER IN CONFIRMATION Thi s case c omes before the purposes of co nf irm i ng the c onviction and sentence which were rec orded in the lowe r Cour t. this Court for the offices of the Government Pr ess th e accused person, As sani Msosa, on or abou t in Th e a ccused wa s c harged with theft by a person employed t he publ ic servic e contrary to Section 278 as read wi th Section 283 (1) of the Penal Code. The particulars of the cha rge averred the 10th t hat Feb ruary 1992, a t the in th e public Muni c ip a l i ty of Zomba, being a person employed s e r vic e , nam e ly, a driver, and havin g by virtue of hi s employment r e c eiv e d or had in his custody or under his c on t r o l a complete whee l f or a Bedfor d mot0r vehicle, MG 407F, to the val ue of K630, to his was unabl e e mp l oyers or make due account therefor. He was c onvi cted of the of f e nc e and was sentenced t o a term of 7 years impris onment with hard In addition, and in compliance with the provisions of Sec ti on 283(6) of the Penal Code, the Court made an order for the s ei zur e and s a le of the accused person's proper ty sufficient · to re ali se the s um of K630 which would be paid to his e mployers. the said motor vehicle whe e l to produce lab ou r. in t he Co urt th at on is an ex ecutive officer at the Government Press. Th e first witness for the prosecution at the t ri al was Mr . He Go l iat i who the 10th February 1992, Mr. Kadumbo who to l d had been i nstructed to drive MG 407F which was the veh icle which was a ssi gne d to the a c cused, reported that the vehicl e's spare He stated t~ at on the following da y he asked whee l was mis s in g . the ac cu sed ab out the mis s ing wheel and the ac c used a l leged to have t ol d Mr . Go li ati that he (the a ccused) had lent t he wheel to 2 I ..... Mr. Chintali. When Mr. Chintali was asked, in the presence of the acc used, Mr. Chintali denied that he received a spare wheel It may be pertinent to point out that when Mr. from the accused. the accused Goliati asked Mr. Chintali about the missing wheel also denied that he told Mr. Goliati that the wheel was lent to Mr. Chintali. in the 10th February 199 2, while to him was PW2 was Mr. Kadumbo, another driver at the Gov ernment Press. the He tol d the Cburt that on vehicle which was assigned the gara ge, he was instructed to drive MG 407F which ws the vehicle assi gned to the accused. He took the vehicle to a filling station and was accom the panied on this trip by Mrs. Kazembe, a clerical officer of Government Press. Mr. Kadumbo the in vehicle. This was unusual because the normal practi ce was that a driver collected vehicle keys He suspected that the vehicle was not properly handed over to the last drove it. Mr. Kadumbo security man by reported to Mrs. Kazembe. Mr. Kadumbo continued to state that on the following day, he and the accused were called to Mr. Goliati's office and that at that meeting the accused stated that he gave the spare tyre to Mr. Chintali and that when Mr. Chintali was called to the meeting the acc used denied having said that he gave the tyre to Mr. Chintali. the fact of the missing spare wheel the vehicle keys the person who securi ty man. found from the PW3 and PW4 were Mr. Katwanj i and Mr. Bwanal i. These were security officers who were in charge of the vehicles yard during the mate rial period. I did not think that the firs t part of the evidence of either of them was relevant. Each of them concent rated on events of the 28th January 1992. The fact s of this case show the 7th February 1992. The next person to drive it was Mr. Kadumbo who to have drove it on 10th February, 1992. evidence relating to whether the vehicle had its spare wheel on the 7th February 1992 when the accused left it in the hands of the security officers. last drove MG 407F on It would be help ful the accused person th at The evidence of PW5, Mr. Steven Munuwa , PW6 Mr. Manyowa, PW? Mrs. Mary Chiwaula and PWB, Mrs. Grace Kazembe, was equally to irrelevant as it failed to touch on the whether the accused handed over the vehicle toge ther with the last drove spare wheel on vehicle. the 7th February 1992 when he the vital question as PW9 was Mr . Wilson Clement Chintali. It will be recalled (P\42) that it was alleged by Mr. Goliati that the accused had stated that he gave the spare wheel to him. the It was further sta t ed that this fact was further denied by One accused in the would have expected witness to bring out this fact. The only evidence which came from this witness was that he knew the accused pers on as a fellow driver at the Government Press and that he had information that the spare wheel of the vehicle which was assigned to the accused the presence of Mr. Goliati and Mr. Kadumbo. (PW1) and Mr . Kadumbo the prosecution to lead evide nce from 3 I . . . . . person was missing. to the prosecution's case. One wonders why this witness was ev en called if this was all that he had to testify. This evidence did not add anythi ng PW1 0 who was last prosecution witness was a Pol ice Off icer. His eviden c e was of a formal nature. He gav e evidence of the a r rest of the accused person and also tendered the state ment whic h he recorded from him. the to took his vehicle, MG 407F that the spare wheel was on I n h i s de f'e n c e the accused person stated that on the 25th the P. V. H. O. J anuary 1992, he wor kshop for repairs. He collected it from the works hop on the 28 th Janu a ry. He stated that before collecting it he checked it and conf i rmed the the 7th January 19 92 he went veh icle fr om that day and that on and del i ve red it at the vehicle yard and left the key s with the the spare secur ity officer. There was evidence to suggest tha t wheel was on the vehicle at . the time of leaving it at the yard for oth erw ise the security officer to whom he had han ded over the keys wou ld have made a note of it. He finished by s tating that it was onl y on the 11th February 1992 when he reported for duties that he he ard that the spare wheel of his vehicle was missing. He drove it. In i nviting him t he body of his evidence, the accused person stated that On that day he received a the 7th February 1992 was a ~riday. let t e r the following Monda y whi ch was the 10th February 1992. He obtained permission to be aw ay on the 10th February and it was while he was away that in structed to Mr Kadum bo, whose vehicle was dri ve MG 407F. in the garage, was to attend an interview on I hav e endeavoured to outline the evidence in order to see whether in the accused was properly in t his case som e det ai 1 con v i cte d. All throughou t the trial. remains with i s concerned. t hat e mployment he received or had that the prosecution reasonable doubt, in the public service (b ) by virtue· Be ing a criminal case, the burden of proving the guilt of the acc us e d person beyond the reasonable doubt The charge of theft by a pro s e cut io n pers on e mp loyed in the public service under Section 28 3(1) of the Penal Co de is in a special category in so far as the burden of is required to pro of the so prove beyond pro ve , and accus ed pe rson was employed in custody or under his of to his contr ol ce rtain property (c) he was unable to pro duce these emp lo ye r such property or make due account therefor. When the three ele ments is pro s e cu tio n against the accused person, a creat ed t hat the accus e d person has stolen the proper ty unless he satisf i es t he Court to the contrary. The standard of proof laid on th e acc used person in leading evidence to satisfy the Court to the cont rar y is not beyond reasonable doubt, but on the balance of pr ob abi li t ies. In other words, the standard of proof laid on th e ac cu se d person is the lower standard as is requir ed in Civil Cas e s . r;,-~~~ legal pre sumption reasonable dou bt are proved uR, OF "1-1~ beyond th at (a) is by \-\IG "~ :~ ' - " 11 i ;. ', \, , 2 6 ocr 1993 ~ ) 4; . .... '"1.. ~... •~ ... I tr r.,. ~ - - -~ _ t\ ( ' /,/ I' .,,..~,I , -:., ~-~,...! • Magistrates usually give themselves the usual wa rning that in Cr iminal Cases the prosecution must prove the case against th e acc used beyond reasonable doubt. Regrettably, this warning is onl y giv e n lip-service. It seems to serve only as pa rt of the for mat of writing judgments. Some magistrates hold the v iew that a criminal and ir re gula r . Nothin g could be further from the truth. I t must be emp ha siz ed that at the end of the trial the Court mus t subject t he e ntir e evidence to such scrutiny as to be satisfie d, beyond re a so nable doubt; that al 1 the important elements plac ed on the pr ose c ution by the sub s tantive law are proved. If it is not so sat isfied , the accused person must be acquitted. judgment without such warning incomp lete is Secondly, even where all the important elements re quired to the prosecution have been proved beyond r easonable be proved by dou bt, the Court must consider the evidence in defence. If such ev i de nc e reaches a point where it creates some doub t as to the gu ilt of t he ac c used person, then such doubt must be ex ercised in fa vour of t he accus e d person and must result in his ac quittal. In t he case of Gondwe v. Republic, 6 ALR (Malawi), 33, Weston J, in dealin g with the treatment of defence evidence had th is to say at Page 36:- 11 • • • • • the a pp e 1 1 ant gave an e xp 1 an at ion , for what it was worth, and let me say at once that, like the resident magistrate, I do not think it was worth mu ch. Nevertheless, it is trite learning that it is for t he ~ _.:\. ,,~ doubt and not for an accused person to prove his innocence. This has been said so often as to be a danger of losing its urgency. As in every case wher an accused person gives an explanation, in this cas e i t s a p p 1 i c a t i o n re q u i re d t h a t c o u rt ' s a p p r o a c h t o t h e ·;1 ~\::O : / I i t a pp e 1 1 ant ' s story sh o u 1 d not have bee h w h a-t evidently was: "Is the accused's story true or false? 11 Y resulting, if the answer were 11 False 11 ' that the appellant must necessarily have had a fraud u- " ' lent intent. The proper question for the Court to have asked itself was "Is the accused's story true or might it reasonably be true?" - with the result t hat if the answer were that the appellant might reasonably be telling the truth, the prosecution woul d not in that case have discharged the burden of proof beyond reasonable doubt imposed upon it by la w. 11 in a finding \ t... J ~ b • o-- o c ~ ~ ~ ~ ~ ; f , j £! J <· j ' ~ - :-~ - V" In the from instant case, the evidence which has been outl ined, it is clear that the most vital point, in so far as the guilt or innocen c e of the accused is concerned is the t i me when he las t drove the vehicle in question and left it in the vehicle look at the evidence and find whether it was yard . the accused bro ught MG pro ve d beyond reason a ble doubt that when t o th e vehicle yard at about 5.10 p . m. on the 7th Feb r uary 40 7F 1992, th e s pare whe e l of the vehicle was missing. If t here is dou bt as to whether the s pare wheel was there or not, such doubt must be e xerc ised in favour of the accused. We ha ve to 5 / • • . • . together with the vehicle such as the security officer of PVHO, Tt"\is evidence was corroborated by checked jack and spare wheel. In . his evidence the accused person stated that he took his vehicle to the P. V. H. O. workshop for repairs on the 25 th January 1992. He collected it after repairs on the 28th January, 1992. He expressly stated that at the time of collecting the vehicle the he, accessorie s of He the vehicle at directly testified that the spare wheel was the evidence of that time. PW6, Mr. Manyowa, of PVHO and that of Mr. Bwanali, a security officer at the PVHO who testified that at the time of collecting the vehicle from PVHO on 20th January, the spare wheel was there. He drove the vehicle from the 28th Junuary up to the 7th February in the yard when the spare 1992 and that he parked the vehicle wheel was in it on that day and left the keys with the security officer of the vehicle yard a the Government Press. One would have expected the security officer who was on duty at the Govern ment Press vehicle yard to give direct evidence to the effect that when the accused person brought the vehicle to the yard on the 7th February at 5.10 p.m. the spare wheel of the vehicle was not there. Unfortunately such evidence was not forthcoming. in PW3, Mr. Katwanje, who was a security officer, stated that on 28th January the accused brought MG 407F to the vehicle yard and that when the vehicle was checked it was found to have its spare wheel missing. PW5, Mr. Munuwa, also a security officer, stated that he the reported for duties at the Government Press vehicle yard on from PW3, Mr. 28th January 1992 at 5.45 p.m. Kat wanje. He stated that Katwanje told him that MG 407F arrived on that afternoon without a spare wheel. This part of evidence was clearly hearsay and inadmissible in evidence. took over He the accused brought If the evidence of PW3 is to be believed that on the 28th the vehicle without a spare January 1992 wheel, when they knew that it ought to have a spare wheel, why did they not report this fact until the 10th February 1992 when t he missing of the spare wheel was discovered by Mr. Kadumbo who drove it on Could the evidence of this witness be reasonably true? that day. Another a nomaly in the evidence is the absenc e of evidence re 1 at i n g to the spare whee 1 at the t i me ta k-e n from th2 yard by Mr. Kadumbo on the 10tl1 February. Mr. Kadumbo stated that on that day he was instru cted to drive MG 407F. He drove it and went to fill petrol accompanied by Mrs. Kazembe. He then checked and found that the vehicle's spare wheel was missing It is not clear whether and reported this fact to Mrs. Kazembe. h e n o t i c e d i mm e d i at e 1 y w h e n h e t h e m i s s i il g o f went to collect the vehicle or whether he noticed this fact after he had driven it to fill the fuel. t h e s p a r e w h e e 1 the v eh i c 1 e w a s I have already established that to prove that when the accused came to leave the vehi cle on the 7th It is also clear that when February, there _ was no spare wheel. is no evidence there 6 / . . . . . .. • ... ;,,,. ___ . __ Mr . Kad umbo came to collect the vehicle on the 10th February, no prop er c heck was made in fact , not there. to show whether the spare wh eel was, In it t he fin a l analysis, is found as a fa ct that the evid en ce of PW3 to the effect that MG 407F was br ought to the Gove rnm e nt Pr es s Vehicle Yard on the 28th January with out a spare whee l t he matt ~r would have been reported to the au t horities. It is a l so s ignif i c a nt that the same witnesses fail e d to testify as to whe the r or not the spare wheel was missing when Mr. Kadumbo came Also the yard on sign i fica nt is the f act that although the drivers were required to en sure that all to che ck the vehicle before taking it away acce ss or i es were the r e, Mr. Kadumbo did not conduc t that check with t he security officers. He reported the missin g of the spare ty r e aft er he had driven it. t o c o l lect it f rom the 10 t h Fe bruary. Ag ai ns t thi s evidence, is the evidence of the accused who stat ed th at he took the vehicle from the PVHO on the 28th January He also stated th at he left it when in t he Governmen t Press vehicle yard on the 7th Fe br uary when the spar e whe el was there. t he spare wheel was there. In the prosecut ion evidence the anomalies view of to the spare wheel on the 7th rela ti ng I find t ha t the prosecution failed to pro ve their case Fe bru a ry, In my view, agai ns t it wo uld be mos t unsafe to stand. to allow Acc ord ing the conviction is quashed and the senten ce of 7 years whic h wa s imposed is set aside. t he accused person beyond reasonable doubt. the 28th January , on this convict ion in Unle ss res pec t of some othe r be r el eas ed from such custody forthwith. t he accused person in lawful reason it is hereby or dered that he is being held i n custody Pron ounced i n open Court this 14th day of Sep tember 1993 at Blan ty re. L. A: Chatsika JUDGE