Mpalume v R (Criminal Appeal 4 of 2001) [2001] MWHC 120 (13 March 2001)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL APPEAL NO 4 OF 2001 SULULU TWAIBU MPALUME VERSUS THE REPUBLIC In the Second Grade Magistrate sitting at Liwonde Criminal Case No. 287 of 2000 CORAM: D F MWAUNGULU (JUDGE) Manyungwa, State Advocate for the State Mwala, representing the Appellant Kachimanga, official court interpreter Mwaungulu, J JUDGMENT Mr Mpalume appeals against the Liwonde Second Grade The Second Grade Magistrate convicted Magistrate’s judgment. the appellant of unlawful wounding. Unlawful wounding is an offence under section 241 of the Penal Code. The Second Grade Magistrate sentenced the appellant to two years imprisonment with hard labour. Mr Mpalume appeals against conviction and sentence. The sentence was to be served immediately. Mr Mwala, who appears for the appellant only in the appeal, raises four grounds of appeal against conviction. There is a single ground of appeal against the sentence. First, Mr Mwala argues the verdict is against the weight of evidence. On appeal to this Court, this Court proceeds by way of rehearing. This court examines all the vidence in the court below. if there is This Court seldom interferes with It material on which the court below could. have found that fact. a finding of fact does not matter if there was contrary material except, of course, where the lower court never considered and made a finding on the contradictory evidence. This Court will, therefore, follow a lower court's finding, if, having considered the contradictory evidence, the lower court rejects it and finds a contrary fact on the evidence settle matters of before it. trial court’s assessment credibility. of credibility. This assessment is not sacrosanct. It is not where it is unsupported by all material before the trial court. A trial, This Court normally respects a better poised to court is The evidence in the court below needed circumspection. Both sides suggested the wounding was caused because of another's advances on the other's spouse. The appellant, at the His police and in defence was he acted in self-defence and in defence of his wife. Mr Mwala contends that, despite evidence raising it, the trial court never considered it in the judgment. court, admitted wounding the complainant. the trial courts evidence evaluation was of The The complainant said that the appellant attacked unsatisfactory. him because the complainant found the appellant with his wife. The complainant's wife, called for the prosecution, denied the The trial She was adamant the event never occurred. occasion. court's finding on the evidence is surprising. Contrary to the evidence on the record, the trial court held her evidence supported the complainant's case. The trial court could have rejected her The matter was not as simple, if the court rejected the evidence. evidence. The court had to resolve an apparent contradiction in the prosecution case. There was no explanation for this apparent contradiction except, may be, that it was in the wife’s interest to conceal the affair, if it was one. Contradiction in evidence, however, does not justify rejection Many factors may cause discrepancies in of all the evidence. evidence or the witness or witnesses. Witnesses testify from recollection of past events. Memory and oversight of minute detail There might be other reasons as affect the quality of evidence. Davies, J, said in Parogjic v. Parogjic, [1959] 1 1 cited in Mahommed Nasim Sirdar v. this with Republic. Davies, J., in Parogjic v Parogjic: All ER 1, approval court by “It would not, | think, be right to approach it from the point of view that as she and her witnesses have lied about one thing, the remainder of It is not unknown for people, their evidence must be equally unreliable. particularly simple and uneducated people such as these are said to to fall into the error of lying in order to improve an already good be, case.” Serious contradictions however must be explained. The trial court The must make a specific finding on the contradicting evidence. trial court can neither, as happened here, ignore the contradictory evidence nor find support not supported by the evidence. The court's approach affected evaluation of the prosecution and the defence case. This leads to the second ground of appeal. is contended that the trial court erred in law in holding that the defendant's defence that he wounded the complainant by protecting his wife is necessary to detail the lower court’s was not supported. actual wording on the finding. It It “The accused admitted to have stabbed the victim with a razor blade. The rationale being that his wife was dragged by the victim into the This alone this court can no believe because there is no witness bush. who supported the claim of the accused. If the accused had witnesses who could establish that indeed the complainant dragged the wife of The accused could have escaped from the the husband into the bush. conviction”. the Criminal Procedure and Evidence Code of Section is not necessary for proof of any fact that there be provides that it more than witness. A fact can be proved by testimony of a single On the The lower court’s assertion misstates the law. witness. evidence the particular supported the appellant's. The trial court, made no finding on the That doubt must be resolved in the appellant’s wife evidence. appellant’s favour. The trial court, however, made a finding on the appellant’s evidence. appellants moreover, wife’s case, The The trial court disbelieved the appellant’s evidence. basis of that disbelief is questionable. The trial court disbelieved the appellant's evidence because it was not supported. It need not It stood alone. The court's approach to it should have have been. been what was stated in Republic v. Gondwe, (1971 — 72) 6 ALR (M) 33: “As in every case where an accused person gives an explanation, in this case its application required that the court’s approach to the “Is the appellant’s story should not have been what it evidently was: accused'’s story true or false?”, resulting, if the answer were “false,” in a finding that the appellant must necessarily have had a fraudulent 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 that if the answer were that the appellant might reasonably have been telling the truth, the prosecution would not in that case have discharged the burden of proof beyond reasonable doubt imposed upon it by law.” The appellant's evidence stood. The evidence showed a possible defence, self defence or defence of a person. This leads to the appellant’s third ground. by the evidence, self defence or defence of Mr Mwala argues that the trial court should have considered the possible defence a person. raised There is a duty on a court to consider a possible defence raised by the defence or prosecution evidence. This is because the onus is upon the state to prove the case against the defendant beyond reasonable doubt. That standard is scarcely achieved where there The overall duty for the prosecution to is prove the case against beyond reasonable doubt means that, once the defence or prosecution raises a possible defence, the onus is upon the state to prove beyond reasonable doubt that the offence is not for the defendant to was committed without the defence. is up to the prosecution to negative the prove the defence. defence, to show that the offence was committed without the defence. a possible defence. It It a as raised The evidence, Mr Mwala argues, possible defence. The appellant and his wife gave evidence to that effect. The onus was upon the The evidential burden was discharged. prosecution to prove that the offence was committed without the The lower court never considered the defence at all. defence. Failure to consider a possible defence may be fatal to a conviction. It will be where the evidence clearly established the defence. The If the defence is court on appeal must evaluate all the evidence. clearly established the conviction is unsatisfactory. In this case there was more to suggest that the appellant acted in self defence or defence of his wife, the appellant’'s wife The complainant’s wife refused that the testified to that effect. The defence case is that the assault was on account of her. the complainant was dragging the appellant's wife and fell The complainant stabbed the appellant who intervened ground. to The appellant in defence attacked him with a razor for his wife. blade. The court below did not consider a possible defence. The The assistant chief state advocate conviction is unsatisfactory. agrees. | allow the appeal. | quash the conviction. | set aside the conviction. Made in open court this (13" day of March 2001. {)