The People v Lukas Chiwaula (H.N.R 202/1970) [1970] ZMHC 11 (20 August 1970)

THE PEOPLE v LUKAS CHIWAULA (1970) ZR 85 (HC) HIGH COURT GARDNER J 20th AUGUST 1970 H. N. R 202/1970 Flynote Evidence 25 - Confession - Exact words purportedly used by accused in confession to be given in court. Headnote The accused was convicted by a Magistrate Class II of assault occasioning actual bodily harm. The prosecution alleged that the accused struck the complainant on the head with a hammer. The accused made an 30 unsworn statement in which he stated that it was the complainant who struck him first and that in striking back he was acting in self- defence. When convicting him the magistrate relied on a confession purported to have been made by the accused to the arresting officer. However, the police witness did not produce before court any written statement made by 35 the accused nor did he tell the court the exact words which he used. On revision: Held: (i) When evidence which purports to be a confession is tendered to the court, it is most desirable that the exact words used by the 40 accused should be given in evidence. (ii) In the particular case the accused acknowledged that he had struck the complainant with a hammer and if that was what he told the police witness it did not amount to a confession because it did not refer to his defence of self-defence. 45 1970 ZR p86 GARDNER J (iii) Conviction quashed and sentence set aside. Judgment Gardner J: The accused was convicted by the Magistrate Class II at Kalulushi on the 27th July, 1970, of assault occasioning actual bodily harm. The particulars of the offence were that he assaulted Lemias 5 Phiri by striking him two blows on the head with a hammer. The accused first pleaded guilty but when he disagreed with the facts as read before the court by the public prosecutor his plea was changed to one of not guilty. The evidence for the prosecution was that of the complainant Lemias 10 Phiri who said that whilst at home at 10 p.m. half asleep he heard insulting words outside his house and a knocking on his door. He opened the door and saw the accused who said that the complainant was not looking after the accused's wife properly. Thereupon the accused struck the complainant with a hammer on the back of his head, and struck a further blow on the 15 complainant's forehead. This evidence was confirmed by that of Rosemary Phiri, the complainant's wife, who said that her husband received two wounds from the hammer. The complainant himself said he went to the hospital the following day where he was not admitted and his wounds had since healed. PW3 20 Jones Banda, a police constable, said that after hearing of the assault he went to the house of the accused where he found the accused and arrested him. At the police station, the witness said, the accused voluntarily admitted the charge. The accused made an unsworn statement in his defence in which he 25 said that whilst he was walking along returning from a friend's house, he was singing. The complainant met him and asked him about his song so he stopped singing and went straight home. As he was talking to his wife he heard a bang on his door and the complainant came in and hit him on his head. There was a struggle during the course of which a hammer 30 fell to the ground from a chair and the complainant picked up the hammer and tried to hit the accused with it. The accused snatched away the hammer and hit the complainant near the forehead. Finally the complainant turned away and the accused hit him again at the back of his head and another man came and stopped the fight. In 35 his judgment the magistrate set out four heads pointing to the guilt of the accused. The first three heads related to the identification of the accused, but this was hardly necessary as the accused himself admitted that he was the one who struck the blows with a hammer. Under the fourth head the magistrate said, "The accused admitted the charge 40 to the arresting officer who tendered that piece of confession in his evidence. He did not cross - examine the police witness about his confession." The police witness did not produce before the court any written statement by the accused, nor did he tell the court the exact words which were used by the accused. 1970 ZR p87 GARDNER J Whenever evidence which purports to be a confession is tendered to the court, it is most desirable that the exact words used by the accused should be given in evidence. In this particular case the accused acknowledged that he had struck the complainant with a hammer and if this was what he told the police witness it certainly does not amount to a confession 5 because it does not refer in any way to his defence of self-defence. The same situation occurred when the accused was called upon to plead before the magistrate. He thereupon admitted the charge and admitted committing assault occasioning actual bodily harm and admitted using a hammer. However, when he said that he did not agree with the police 10 statement the magistrate quite rightly entered a plea of not guilty and it transpired that the accused wished to raise the defence of self- defence. In the course of his judgment the magistrate did not apply his mind to the question of the demeanour of the witnesses and the only time he referred to the evidence at all is when he said, at the end of his judgment, 15 "notwithstanding what he had to say in his unsworn statement the court finds the accused guilty". There may have been sufficient evidence for the magistrate to convict without the so - called confession of the accused, but in that event the magistrate should have stated clearly in his judgment his assessment of 20 the evidence of all the witnesses. It is clear from the way in which his judgment is set out that the magistrate was influenced by what he thought was a confession of the accused and in this respect he misdirected himself. It is appropriate in this judgment on review to refer to the evidence relating to the bodily harm of the complainant. There was no medical 25 evidence and there was no independent evidence describing the wounds suffered by the complainant, and in such event it is impossible for a magistrate, let alone a review or appeal court to decide the gravity of the assault. This of course would affect the sentence considerably. Whilst medical evidence is not essential if there is clear evidence from a 30 responsible person as to the extent of the wounds it is desirable in most cases. With regard to the recommendation for repatriation which I have been asked to confirm, I do not consider that in a case of assault of this nature and especially in the case of a first offender, that repatriation should be ordered. If 35 the magistrate had not been influenced by the so - called confession, it is impossible to say whether or not, he would have been in reasonable doubt as to the guilt of the accused. Accused acquitted