R v Chikafa (Criminal Appeal 46 of 2018) [2019] MWHC 253 (28 January 2019)

f,.fJGH C()URT I llGil COURT OF MALAWl PRINCIPAL REGISTRY CRIM10IAL DIVISlO~ Sitting at Balntyre Criminal Appeal No. 46 of 2018 (hci11g Criminal Cause no. l 90 of20J 7, SGl\11 , Chisenjerc Magistrates ' Court) t.. 'fifi· .iJ. RY .. - THE REPCBLIC V ERNEST CHIKAFA JlJDGMENT ON APPEAL n11u/<.a1111da Kamanga, J., < >11 20 111 June 2017 the 35 years old defendant, who is now the rL'Sp(111(k11t (() tl1i:-; ;1ppl.::il, Mr. Ernest Chikafa, appeared before the Second C,radc M:1gi:-;tr:1k, :-; itti11)' :1t ( 'liiscn_jcre Magistrates' Court where he ~leaded not guilty to ;i cli:1ri·.l· ()r tl1(· ol"knce of indecent assault on a female contrary to section 137( I) 0! 111(· l\·11:il ( 'ode. At the case to answer stage of the trial the magistr;11l' ;1np1ilkd 111,· dckndant on the said charge after he had made a ruling on 7 111 Novl·11tlh·1 )()I/ tli;1t the accused had no case to answer as the prosecution had l:tikd t!l l·:: t;il1ld1 ;1 ;wima facie case against the accused requiring him to enter ;1 lk lt·11,·l · TI 1,· Director of Public Prosecutions being dissatisfied on a point or L1w \\'ill, till: decision of the Second Grade Magistrate acquitting the defendant 011 :1 cl1;1r;•t· ()r indecent assault against a female at the case to answer stage or the tri:11, :iltn obtaining leave of the court on 24111 August 2018 which pave way for the lili1q•. ld the petition of appeal and the hearing. In the petition which was t;1kc11 1111<k1 section 350 of the Criminal Procedure and Evidence Code (hereinaller till·< ·1, :111<1 EC) and the Director of Public Prosecutions appeals to the High Court < 111 1 I w !<)!lowing grounds: l. That the learned magistrate erred in law by taking age to be an ck111 ,·111 l<,1 the offence of indecent assault on a female. 1 Tk1t the learned magistrate erred in law in acquitting the c1cct1Sl.'d I H·1 ::( ,11 ()11 ;1 charge of indecent assault on a female at the case to answn :;l:11·.l· nl IIH· 11-i:il, the same not being supported by the evidence. Page 1 of 9 - 3. That the learned magistrate erred in law in not adding a new cli;1ri·.\· , •i charges against the accused person for the offence or offences disclosed ll _\ the evidence. The relief which the prosecution seeks on this appeal are as follows: 1. the decision to acquit the accuse person at the case to answer stage of the trial be reversed. 2._ The accused person be found with a case to answer on the charge or other charges and be required to enter his defence. 3. Any other relief that the court may deem appropriate. The appellant filed skeleton argument in support of the grounds of appeal wbich the court will subsequently refer to in the judgrnent. The respondent opposes the appeal, as is shown in the skeleton arguments that were filed on his behalf, and his prayer is that the prosecution ' s appeal should be dismissed and that the reliefs sought should not be granted . The arguments of the appellant ond respondent The court acknowledges and appreciates the legal research work that was done by the Senior State Advocate and the legal practitioner for the respondent in preparing the skeleton argument that have ~ en filed in this appeal matter. On the first issue of whether the learned magistrate erred in law by taking age to be an element for the offence of indecent assault on a female the appellant argues that the magistrate misdirected himself by taking age of a girl to be an element of the offence of indecent assault when the magistrate stated in his ruling that 'the elements of the case are that, the girl be aged 16 years and that the accused indecently assau lted her'. The appellant correctly submits that the section under which the offence of indecent assault on a female is provided for does not have age as an element of the offence. While the respondent agrees with the prosecution that the offence o 1· indecent assault under section 13 7(1) of the Penal Code is not age speci fie he contends that subsection 2 of section 137 is irrelevant in this case as at no point did the respondent plead consent as a defence. The respondent is of the view that the lower court did not regard age as a necessary element of the offence. The respondent submits that if age was regarded as an element, which he submits was not the case, the said error was of no consequence since the respondent's acquitt,il was based on the lack of evidence for the assault itself therefore age could not affect the conclusion of the court. Page 2 of 9 - 111 ll'/ 1.:1rd lo the second issue, of whether the learned 111;_1gi s t1:1ii' , · 11, ,I 111 .1 l:1\\' i11 :1l·l111i11i11g the ;_1ccused person on a charge of indecent ass;_1ul1 (>11 :11 I ill· c:ISl' to ;_111swer stage of the trial, the same not being supporkd I,\ 1 J 1, ,·vidL'lll'l' tile c1ppellant rely on the s 254(1) of the CP and EC and till' ,·:1:,i · 1,I I I( ·111i11 ,. 11//l!('c/er j l 948] 2 Q. B 61 to contend that there is sufficient cvidv11ll' , ,11 IIJL· ;_1g:1ill s! 1lw dckmLlll!/rcspondcnt on a charge of indecent assault on a female. The :1ppl·ll:1111 poi11ts out some three occasions when the defendant indecently ass;_1ulkd tlw vic!irn :111cl ;1sserts thc1t such evidence was not disputed nor discredited dt1ri111•. noss cx:1111 i 11:1t ion. to establish a prima facie case record or the case it'111 . 1I, < )11 this same second issue for determination, the respondent asser!s tli:11 1l1L· l·ot1rt did not error in acquitting the respondent because apart from !liL· l·vidl·11L·L· or the victim herself, the evidence of all other witnesses is hearsay :1s l:11 :1s the truth of the alleged assault is concerned. The respondent also contends 1 I 1:11 I iiL· evidence of the victim was so discredited in that she allegedly lacked ('( >11sistency in her versions and that impeached the reliability of her testimony. I Ill' rL·spondent is of the view that as much as the medical evidence may establish 111:11 till· victim may have been carnally known, the same docs not establish the 11k11tity or the man nor does it prove that her breasts were touched by the 1 l·::1 H llldcni. ' The third issue for consideration is whether the learned magistrate erred in l:1w in not adding a new charge or charges against the accused person for the () I k1ice or offences disclosed by the evidence. The prosecution asserts that under ~, .~:i ..'.l(2) of the CP and EC the lower court was under a duty to evaluate the prosecution's evidence to establish whether the evidence had proved the offence charged or other offence or offences other than that the defendant was charged with but was disclosed by the evidence subject to the provisions of section l 5 I or the CP and EC. The appellant is of the view that depending on the finding or the age of the victim witness, the accused person was also supposed to be ch~1rgcd with the offence of defilement or rape as there is no dispute that the de!c11d:1n1 had sexual intercourse with the victim witness on three different occ1sio11s between 2013 and 2017. The appellant contends that the medical report tc11dl'l\'<I in evidence indicated that the victim witness was sexually active and ih:1t tl1,·1\· were bruises in her genitals. That this particular piece of evidence w:1s 11()1 discredited in cross examination as the victim stated that she never slept vvitli :111y other man apart from the accused person. The appellant also submits tli:11 Iii,· evidence adduced by the prosecution discloses an offence under section l . S<>( /\) of the Penal Code as the defendant had sexual intercourse with a fem~tlc 1111<kr the age of 2 l years \,vho was under his care or protection. Page 3 of 9 - According to tl1e respondent the power of the court to add or ;ilk1 1 11.11 .. , under s 15 l of the CP and EC is not mandatory. The respondent ~1ssL'1!s I I 1:11 1 I 1, lower court was not bound to add or alter the charges as the prosccuti(),1 \\1>11ld like to make the court believe. It is the view of the legal practitio11cr lilr IIH· respondent that the lower court did not err in adding or substituting thL· cli;11'J-',l'", as a cou1i cannot make a finding of no case to answer on a charge or i11dL'l'l'11t assault, and then substitute the same with a charge of rape or def'ilemc1ll, lilt: commission of which necessarily involves indecent assault. This court is ol' till· view that it seems that counsel for the respondent has deliberately elected to l'r;1111L' his arguments in a narrow sense in regard to the powers of a court in alteratio11 ol' charges. The decision The major issue for consideration in this appeal is whether at the close of the prosecution's case the prosecution's evidence had been sufficiently made out against the accused person to require him to make a defence. The case of Gvvazantini v Republic [2004] MLR 75, holds that a primafacie cc1se is made if on the evidence adduced, a reasonable tribunal "could convict" as opposed to "would convict" on it. In that it should just be merely possible that a reasonable tribunal may possibly convict on as opposed to evidence th~1t a tribunal will convict on it. It is not disputed that the burden of proving the gui It of an accused person lies in the prosecution in any criminal matter. In that the prosecution is required to prove all the elements of an offence that an accused person is charged with: Woolmington v DPP [1935] AC 462; section 187 of the CP and EC. A trial court will make a finding of a case to answer where a reasonable tribunal might convict on the evidence so far laid before it: DPP v ChimJJ!wnda [1973-74] 7 MLR (Ma]) 94 and Lemos Mpasu v Republic [2009] MLR 282. On the other hand, the case of Republic v Mkhondiya and others [2012] M LR 4·14 is good authority for the principle that a court will find a no case to answer ir there is lack or evidence to prove the essential elements of the offence. The standard of proo rat this stage is lower than is required for a conviction. This appeal court has to subject the evidence that was before the subordinate court to a fresh scrutiny and consider if there was evidence proving the essential elements of the offence or indecent assault on a female or if the evidence adduced by the prosecution had been so discredited as a result of cross examination or was so manifestly unreliable that a reasonable tribunal could not safely convict on it: Namonde v Republic [1993] 16(2) MLR 657. The case of indecent assault on a female which the defendant was ans,vering in the magistrates' court is provided for ins 137(1) of the Penal Code and is not age specific. Section 13 7( 1) of the Penal Code is worded as follows: Page 4 of 9 - '/\11y person who unlawfully and indecently assaults any woman or girl sli,ill be guilty or a felony and shall be liable to imprisonment for fourteen yc,1rs.' /\11 L'X<1mination of the subordinate court's record of the case of this criminal 111;1llL'r, the petition and grounds of appeal, the skeleton arguments filed by the 1);1rt ies ltlr co11sidcrntion in this appeal process shows that the evidence clearly 11i:1k1.· out ;1 more th,111 prinwfocie case that the defendant committed the offence ()r i1Hk-cL·11t ;1ss,1L1lt on a !'cmale contrary to section 137(1) of the Penal Code tlwt '11.· w;1s ck1rgcd with as well as other offences which will be outlined below. This L·ot1rt limls ,is f'ollO\vs on the issues that were raised for determination: I. 1:irst, the appellant is correct in arguing that the magistrate misdirected himsel r 011 ;1 point of law when on page 9 of his ruling he took age as an clement or the offence of indecent assault on a female. This offence can be committed ;1g,1inst any girl or woman of any age. The reference to the age or 16 yea,·s in s 13 7(2) of the Penal Code concerns consent not being a defence in respect or g irls below the age of 16 years. Stil] on the issue of age, the magistrate miskd himself on the age of the victim when he accepted the analysis ol'the dek·111.'L' that the victim witness was above 16 years o ld without making a !i11di11;•, ()IJ the evidence in regard to her age. The evidence on record rcve;ils !li:1t lliv institulion on admitting the victim on l 't November 2011 completed tliv l·l1ild case record, which appears in schedule 3 as form 3A, and is exhibit 111:111·. ~·d IDD1, which indicates that the victim was born in 1999. This ltm11, wl1i1: l1 must have been known to the defendant, must be taken to more :1LTt11:1kly reflect the year of birth the victim. This comi is of the view th,1t lli1: ,·i~·ti,11 must have been 18 years old when the issue of sexual abuse was bei 11g rv1 )( )I kd to police and when she was being examined at the One Stop Centre. Wl1l·11 liiL· first incident occurred in 2013 she must have been 14 years old all(! sli1.· 111t1~,t have been 17 years old during the second incident of sexual abuse. Tlil· Ii r.<-;l ground of appeal succeeds. 2. Secondly, the record of case reveals that the victim, PWl, testil'ied tli:1t tl1l· defendant indecently assaulted her on three occasions starting in the y1.·:1r _l_(l I i when the defendant indecently assaulted the victim at his office, thcrl·,ilh-1 ~,l1l· was also indecently assaulted in 2016 at a grave yard and then during llil· 11i)'.lll in 2017 when the defendant had called her to his office. These i11ci(k11t:; ()r assault which were clearly sexual in nature and can be regarded ~is oll(:11:,ivl· to any standard of modesty and privacy were neither disputed nor disc1'l·ditnl by the defendant and are sufficient evidence to establish a JJri11w/c1ci( · l·:1:;l· () r indecent assault and sexual violence against the female victim in this ni111i11;il Page 5 of9 - matter by the defendant as required by the law and prn11t.:1l _\' 1·\ 1il.1111 , · , l 111 11, . case of Gwoza11ti11i v Rep ublic [2004J \llLR 75. The 111:1gisl1:1k ':; l1 11d111•· 11 , his ruling on pages 9 and l O that the prosecution had l~1ilcd to 1m> vt· 1!1:11 1lll defendant touched the breasts of the victim are not supported hy till· l'Vilit-1 1, 1· on the record as the prosecution did not allege any specific incide11! ol :1ss: 1ul1. The evidence of PW2 and P\V3 that the victim revealed to them t kit slic· was being sexually abused by the defendant is not hearsay as argued by the defendant as these witnesses were stating facts to establish tha t certain statements were made by PW 1 ,vhich helps to show the consistency or the conduct of PW 1 in making an effort to report the sexual abuse to her friend PW2 and to the head of education and children welfare, PW3: s 232( l) or the CP and EC. The evidence of these two witnesses also corroborates the victim 's evidence on the allegations of sexual abuse while she was at the institution: s 232(2) of the CP and EC. Further, the defendant's arguments in regard to the medical report, exhibit marked B l, arc without substance since the medical report is directly I inked to the dcrendant because he is mentioned as the perpetrator of the sexual abuse and this court finds that the conditions under s 180 of the CP and EC were complied with as the said report was served on the defendant and he acknowledged receipt of it by appending his 1rnmc and signature on the document. This court finds that the trial magistrate' s finding of no case to answer and the rcsultani acquittal of the defendant had not basis on the available evidence and i11 law. ·_rhc second ground or ,ippeal succeeds . 3. In addition to the above l1ndings, the trial magistrate e rred in law when he failed to apply s 254(2) or the CP and EC by neglect ing to consider the evidence and any o ther offence or offences it disc losed. The trial mag istr,1te misdirected himself in holding the view that since the cha rge was indecent assault he was not required to consider the offences o!'dc l1lcmcnt or rape. J\s the Senior Stale Advocate who appears for the ,1ppel l,mt has correctly argued, the law placed the magistrate under a duty to alter the cha rge, subject to section 151 of the CP and EC if the evidence di sc losed ,my offence or offences other than that charged. It is the view that after the magistrate had accurately analysed and considered the evidence he shou ld have made a finding of whether or not alternative offences arc disclosed before making a decision of whether or not he could alter the charge. In regard to the first limb oft he exercise, this court having subjected the evidence that ,vas before the lower court to proper scrutiny finds that the prosecution evidence clearly discloses that the defendant committed other offences other than that of indecent assault on a female. All these are offences that are classified to be against mora lity under Part XV of the Penal Code. As Page 6 of 9 - li:1 .'> :tlrL·:1dy heen noted above, medical report strongly corroborates the n ·i(kllL'L' ol the victi111 witness that she was sexually abused because the (kk1id:111t w:1s h,1ving sexual intercourse with her which resulted in her L'\jll'ricllcing p,1in and sust,1ining bruises on her genitals. The defence never 1L· It 11l'd he,· evidence that she had not slept with any other man apart fro111 the (kll.·mL111t. Other f'actors that augment the ongoing sexual abuse are the L1ct 111:11 iliL· delcndant advised his wife, who abetted the commission of the crimes, l)y supplying the victim with family planning pills \Vhich the victim was :1dvisL·d to take daily. The fact that the victim was also threatened with eviction lrn111 the institution if she revealed that the defendant was sexually abusing Jin negates any consent on the part of the victim. The evidence obviously reveals that the defendant, who was the house Lither of the victim at an orphanage, apart from committing the offence thM he was charged he also did commit three other sexual offences: first, th,1t of having sexual intercourse with a female under the age of21 years old who was under his care and protection contrary to section 159A of the Penni Code during the period that PWl was at the institution; secondly, the offence or delilemcnt contrary to section 138(1) of the Penal Code during the first incident of sexual abuse and thirdly, the offence of rnpe contrary to section 133 of the Penal Code during the second _and third incident or sexuc1l abuse. This revelation and finding puts into question the prosecution discretion in charging a single count against the defendant when the evidence tk1t w~1s in possession of the prosecution reveals more and serious offences. I r the prosecution had conducted a proper evidential test that shou ld h:1ve hec11 satisfied that there was enough evidence to provide 'a realistic prospect or conviction' against the defendant on the additional offences that I h;1vL.' hccn identified and listed above. The prosecution having missed out on this process it was still lcl't with the magistrate to identify the alternative charges revealed from the cv idcnce that was presented to him, as has just been done above, followin g which process he should have moved to the second stage of the exercise hy <1sscssi11g whether as a trial magistrate he was competent to alter and ame11d the ch:11"/'. L' that h8d been proffered by the prosecution. This is where the re,il elm! k-11.1·.l· comes in this criminal factor because the defendant having being charged willi a lesser sexual offence of indecent assault on a female the m8gistrate w;1s i 11 terms of section 155 of the CP and EC constrained from substituting i11 tlii :; criminal matter an alternative charge and verdict of a higher sexual ol'll:11n·, such as that of rape or defilement, that was revealed by the evidence. Tl1i :: constr8int \Vas coupled with the fact that the Second Grade Magi strnll.' ,vl 11) Page 7 of 9 - .. tried this case has no jurisdiction under section 13(2) of the CJ> :111!1 preside over offences under sections 133 and 138 of the Penal Code. I < 1,. However, the Second Grade Magistrate had jurisdiction to try the olll.·111 1 that was revealed from the evidence that falls under section 159A or the J\·1i:1I Code and it being a lesser offence from the perspective of maximum pu11ish111L·111 of 5 years imprisonment that is provided in the penal provision than the scn!c11cl· of 14 years imprisonment for indecent assault on female, the magistrate shou Id have invoked section 151 (2)(b) of the CP and EC and ordered the alteration or the charge by way of adding a new charge of having sexual intercourse with a female under the age of 21 years old who was under the care and protection of the defendant contrary to section 150A of' the Penal Code. Alterations, substitutions, additions of the charge may be done at any stage before the magistrates' court complies with section 254 CP cllld l ~C: MoJJO/Ja M~'u/cwa v Rep Crim App 24 of 2018. The magistrate made a judici~il error which has been rectified on appeal as it would have been a great miscarriage of.justice and not a fair trial to sustain the trial magistrate's order finding him with no case to ans,ver as well as to fail to make an order or alteration the charge. The magistrate should have seriously evaluated and analysed the evidence of the prosecution and applied his judicial mind before making a finding of whether or not the prosen1tion has established a prima facic case. Generally magistrates should avoid accepting unwittingly and adopting in a wbolescilc manner submissions of n legal practitioner for an accused person on no case to answer. Having considered the evidence that was before the trial court this court proceeds to al low the appeal and finds that in terms of s 254(2) or the CP and EC the prosecution had presented sufficient evidence to establish a JJrima facie case against the defendant as an accused person for the offence of indecent assault on a female requiring him to enter his defence. Further, after a carcf'ul examination of the evidence and the law and the circumstances of this case this court finds that it will only be fair and just to invoke section 254(2) of the CP and EC as read with section l 51(2)(b) of the CP and EC and order for the alteration of the charge by way of addition of the offence of having sexual intercourse with a female \Vho is under twenty years of age and who is under one's care or protection contrary to section 159A of the Penal Code which is disclosed by the evidence. Having found that in the criminal matter at hand, the evidence received !'rom the prosecution witnesses was strong and linked the accused person to the offence that his was charged with as well as the offences of defilement, rape and sexual intercourse with minors under one's care or protection, in accordance with >;L·ction 353(2) of the CP and EC this court reverses the decision of the trial court :111d orders that this criminal matter be and is hereby remitted to the subordinate 1 1 Hirt with a direction to proceed with the trial and call on the defence case in Page8of9 , - • :1cc()nL111cl' \Nith sections 25](3) and ( 4) of the CP and EC and section 255 of the ( '1 1 ;11HI !·:('. The trial magistrate must enter a case to answer on the two counts 111l·1ll i()ll l'd :1hove, namely the offence of indecent assault on a female contrary to l J 7( l) of the Penal Code and having sexual intercourse with a female :,l·l·I io11 wli() is under twenty years of age and who is under one's care or protection l·o11tr:1ry to section 159A of the Penal Code, and he must guide the defendant by i11viting him to either choose one of the four options mentioned below in defence or lind some other appropriate way of conducting his defence. In brief the suggested lour options open to the defendant as an accused person include but are 1H1! limited to: l. exercising his right to remain s ilent by not testifying or calling witnesses; testifying and calling witnesses; ]. testifying and not calling witnesses; 4. calling witnesses and not testi lying. In the meantime it is also ordered th;_1t: 1. The defendant is to co11! i 11t1e reporting for bail on the terms and conditions that were set out by the tri;il comt. 2. The prosecution should lilc ;1 notice or directions hearing in the subordinate court so that the tri:d Mdgistr;1!e c;i11 set down the matter and give appropriate directions for ltHther co1H.iuct o!' this criminal matter and a date for the commencement or the de knee c;1se. 3. The Rcgistrar,should focilit<1te the transl:.1t.io11 ofthisjudgment into braille for the benefit of the Senior State Advoc,1tc who appears on behalf of the Director or Public Prosecutions as well as court users in a similar position. l 11 conclusion then, all the three grounds of appeal succeeds and this court has decided that the finding of not guilty and the resultant acquittal of the respondent followin g the magistrate making a finding of no case to answer on the part of the defendant/respondent was not supported by the evidence on the record of the case as the prosecution evidence was sufficient to establish a prima.facie case. Any party dissatisfied with this judgment is at liberty to appeal. Pronounced in open court this 28 111 da~,of January\ 2019 at Chichiri, Blantyre ' I, -·-. \ ) ' \ /'' ---''7. J ' , _ __... I, ,, I Dorothy nyaKaunda Karnanga JUDGE ( 'use Information I ):1lcs of hearing I kkndant/ respondent Mr. Kuyokwa rvlr Mlarnbe rvls. Mthunzi & Ms. Chiusiwa f\ Is. 1: _ Ngoma 23 rct October 2018, 17th December 2018. Present & represented Senior State Advocate for the appellant. Counsel for the defendant/ respondent. Principal Court Reporter & Court Reporter. Court Clerk. Pc1ge 9 of 9 - ...