R v Galeta & Anor. (33 of 2005) [2010] MWSC 9 (13 January 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CRIMNAL APPEAL NO. 33 OF 2OO5 (Being High Courl, Sitting at Mutanza, Cnminal Case No. I of 2003) BETWEEN: JAMtrS GALETA WATSON MAKANIKO. .. .. THE REPUBLIC, AND ..., 1STAPPELLANT ... ,.. . 2ND APPELLANT RESPONDENT BEFORE: THE HON. CHIEF JUSTICE MUNLO,SC, JA THE HON. JUSTICE TAMBALA,SC, JA THE HON. JUSTICE TEMBO. SC. JA M'mame. Counsel for the Appellants Philiipo, Counsel for the Respondent Mu'ale, Chief Lau, Cierk TEMBO SC JA JUDGMENT The appeilants \ rere convicted of the offence of murder co1-rtraryr to section 209 of the Penal Code by the High Court, sitting u'ith a jrry ut Mwantza, on 6fr August, 2006. Tirereupon, the court sentenced both of them to suffer death according to lar.r,. This is their appeal against conrriction based on the sole ground of appeal that the conrriction \^ras asainst the u'eip'ht of evidence tendered drrrinp trial. *D*^' ' "'b" A glance at the court record of the High court clearll' shor.r's the follorn'ing: there were three accused persons, namely, James Galeta (herern 1"t appellant); Watson Makaniko (herein )rtd appellant); and Ligisi Kapalepale rn'hom the High Court acquitted of the offence of murder, at the end of the trial. on the not gLtiir.v verdict of the jury'. The State paraded three r.r,rtnesses to prove the charge levelled against the threc accused persons. On their parl, all the accused persons elected to remain silent on being called upon to te slifi' in their or.l'n defence. Consequently, the facts in the instant case are oniy gleanable from testimonies of u'itnesses for the prosecutiou. Such facts include unqualified and unchalienged cautron statements of the appellar-rts rn'hich \^/ere tendered as part of the prosecution led evidence. In that respect, \ /e hasten to observe that the appellants had not retracted their cautron statements before the court belorn, q,here and rn,hen the jurw considered and returned the verdict of guilty against both appellants. In the main, o1-) or about 20fi December, 1999, the appellants conspired to rob some foreign exchange dealer of money for the Christmas festivities. It so happened that b1r then the deceased \ /as one of the several forergn exchange dealers rn'ho plied their trade at Mwanza Border Post. On or about the fateful day, the deceased u,as seen at his place of abode quite earlf in the rnorning as he set off for Mrn,anza Border Post for his business. Unlike on any other previous occasion, the deceased thereafter did not return home until u'hen his body was discovered in a decomposed state, some da1's iater, along the banks of Mkame river in Mwanza district. in their caution statements, rn'hich we have observed were not retracted, the appellants made graphic descriptron of hou', quite earlv tn the morning on the fateful da1', they rar2ylaid and mercilessl1. pounced on the deceased as he sought to rjde his bicycle past them. Thel brought the deceased dor.r'n from his bicrrcle and thereupon brutall]r Smashed his head with a hoe handie until the deceased passed arn'a-v. Whereupon, theS' took his bodl' to the riverside u'here thel' hurriedil' buried it in a shallou' grave. Consequentil', some parts of the body of the deceased remained exposed. Pu'1, the brother of the deceased, subsequently discovered the body thereat and then reported the matter to the police . Commencing u'ith its decision in the case of Kafwambila -v- The Republic, 5 MLR 32O this court has consistentll, held that it u'ill not interfere u.ith the verdict of the jury, if upon examination of the court record of the High Court, this court holds the vier.r' that there \ /as sufficient evidence upon rn'hich the verclict of the juryr could have been founded. Consequentll', considering and approaching tire instant appeal in that perspective, ure have serious difficulties in appreciating the submrssion of the appellants that their conviction \^/as against the i.t,eight of the evidence tendered during trial. To the contrary, it is our considered vieu' that the facts, u'hich we have bricflr outlirrcd above. irresistibl.r' .rnd overri'heJmingll lead to the oniy conclusion that the verdict of the jury rr,,as well founded. Accordinglr', r.l'e dismiss the appeal in its entiret)'. DELIVERED in Open Court at Blantvre this 14il' dav of January, Hon. Chief Justice L. G. Munlc, SC, JA i\^ Sisned.... . L\LilY\. . .. nJn. Justice D. G. Tambala, SC, JA Signed ;i Hon. Justice A. K. Tembo, SC, JA =-