R v Mutale Mukonge; R v Mutale Chanda (Criminal Review Case 25 of 1940) [1940] ZMHCNR 2 (31 December 1940)

82 Vol. II] R . v. M U T A L E M U K O N G E . R . v. M U T A L E CH A N D A . Crim inal R eview Case No. 25 of 1940. N eglect o f duty—Penal Code section 106— accomplices— evidence must be corroborated—statement made by witness before trial inadmissible— duty o f warder to arrest an escaped prisoner. In both these cases all the witnesses for the prosecution other than those who gave formal evidence and the w ife o f one o f the witnesses were accomplices and it was consequently highly desirable that their evidence should have independent corroboration. It is necessary in such cases for the Magistrate to direct his mind to this In these tw o cases the H igh Court held that there point specifically. was corroboration. It was also pointed out by the H igh Court that certain statements which were made by a witness before the trial should not have been adm itted in evidence as the witness was present and could give the evidence himself. On the question o f corroboration o f the evidence o f accomplices, see also B. v. Luliya and Three Others 4 N . R . L . R . 4 ; M ackay v. The Queen 5 N . R . L . R . 190; Reg. v. Dadds 5 N . R . L . R . 332, and Davies v. D . P . P . 38 Cr. App. R ep. 1 1 , 1954 1 A . E . R . 507. The Prisons Ordinance was repealed b y the Prisons A ct, 1855, section 20 o f which gives to every prison officer the power to arrest escaped persons. Section 93 o f the same A ct makes it an offence to harbour an escaped prisoner. Aiding an escape is an offence contrary to section 102 o f the Penal Code. Law , C . J .: Exhibits B and C in Case 18 and exhibits A and B in Case 19 should not have been adm itted in evidence. They were not statements made by the respective accused, but b y a convict witness who himself gave evidence. Those exhibits, therefore, m ust be excluded from consideration. The irregularity o f their adm ission in evidence, however, cannot be said, to have prejudiced the trial o f either o f the accused. In both cases, apart from the form al evidence, the convictions rested on the testimony o f convicts who were clearly accom plices. As regards the witness Malekana, the wife (sic) o f N ed Phiri, the question is whether or not she must be treated as an accom plice. From her evidence it appears that she saw the escapee, James K om be, at N ed Phiri’s hut some time after he had escaped. She prepared food for som eone bu t says she did not know for whom, which, in the circum stances, is doubtful. It is difficult to avoid the suspicion that she did not know she was playing a part which was assisting both the accused to shelter Jam es K om be from arrest. [Vol. II The Magistrate remarked that the evidence o f the convicts must be received with reserve. A very proper observation. Assuming that Malekana was an accomplice, is it clear that the Magistrate directed his mind to the fact that her evidence and the evidence o f the convict accomplices required independent corroboration I Corroboration by one accomplice o f another accomplice’s evidence is not corroboration in law (Rex v. Noakes, 1832, 5 C. and P., p. 326). The law is very strict in these matters. Although it is competent for a jury to convict on the uncorro­ borated evidence o f an accomplice it is the practice for the Judge to warn them o f the danger o f so doing (re Meunier (1894) 2 Q. B., p. 415). In the absence o f such a warning a Court o f Appeal will generally quash In the present (Rex v. Tate (1908) 2 K. B. p. 680.) the conviction. cases, the Magistrate took the place of judge and jury. Did he convey such a warning to himself ? There is nothing on record in either case to indicate that he did so. The law on this subject is settled, and is reviewed in the well-known case o f Rex v. Baskerville (1916) 2 K. B. p. 658, and is discussed in Archbold, 30th Edition (1938) at pp. 464 and 465. In m y opinion the Magistrate did not direct his mind to the question o f accomplice evidence. It is true he realised that convicts were giving evidence. But that is not going far enough. He should have realised that the witnesses were accomplices and dealt with their evidence accordingly, as required by law. These cases have been referred to the Attorney-General, and in view o f his comments I entertain some doubt whether the woman Malekana can be regarded as an accomplice. In these circumstances her evidence may he accepted as corroborative o f the general accomplice evidence. One other matter, however, remains for consideration. Is it the duty o f a warder to arrest a prisoner who has escaped from prison ? I f not, no offence can be said to have been committed under section 106 Penal Code. Section 4 (4) Prisons Ordinance 1931,1 gives prison officers “ the The powers, authorities, protections and privileges o f constables word “ duty ” is not included in that phrase. A power or an authority to do an act does not necessarily involve, in itself, a duty to do such act. On the other hand, section 25 Prisons Ordinance makes it an offence for any person not only to aid the escape o f a prisoner but also to harbour or to conceal such prisoner. To my mind this section implies a duty not to give any such assistance to an escapee. It would seem, therefore, that a wilful breach o f that duty must be a wilful neglect to perform a duty as well as being an accessory after the fact to an escape. Conse­ quently, the respective convictions appear to be correct. F or the foregoing reasons no order will be made in revision in either case other than the confirmation o f the sentence o f eighteen months I. H . L . on Mutale Chanda. 1 Now repealed.—Editor.