Mtilosanje and 3 Others v R (MSCA Criminal Appeal 10 of 2020) [2021] MWHC 403 (28 July 2021)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL MSCA CRIMINAL APPEAL NUMBER 10 OF 2020 (Being High Court Case Number 21 of 2020, High Court, Lilongwe Registry) BETWEEN: TIMOTHY MTILOSANJE AND 3 OTHERG..........cccsccsssssssscsecscceresceree APPELLANT AND THE REPUBLIC a RESPONDENT CORAM: Hon. Justice R. R. Mzikamanda SC, JA Hon. Justice L. P. Chikopa SC, JA Hon. Justice F. E. Kapanda SC, JA Hon. Justice H. S. B. Potani JA Hon Justice J. Katsala JA Hon Justice I. C. Kamanga JA Hon Justice M. C. C. Mkandawire JA Dr S. Kayuni, the Director of Public Prosecutions, Counsel for the State R. Nayeja, Counsel for the State K. Mchizi, Counsel for the 1‘ Appellant C. Mhone, Counsel for the 2nd and 3rd Appellant M. Theu, Counsel for the 4th Appellant Shaibu, Itimu and Maiden, Judicial Research Officers Chimtande and Masiyano, Court Clerks Mthunzi and Mombera, Court Reporters Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA JUDGMENT Kapanda SC, JA: INTRODUCTION This appeal occurs against the backdrop of the unfortunate circumstances of the death of Kottana Maria Chidyaonga, a 23 year old female in the City of Lilongwe during the night of 3 January 2020 in the city of Lilongwe. The four respondents herein were friends of the deceased and were with her before and at the time of the death. The respondents herein were charged with the offence of murder contrary to section 209 of the Penal Code and tried in the High Court, Lilongwe Registry before Honourable Justice Ligowe. On 19 August 2020 the respondents were found with no case to answer on completion of the prosecution case. On 20 August 2020 the appellant filed a Notice of Appeal in the High Court, Lilongwe Registry citing several grounds that will be explored in greater detail below. These skeleton arguments are filed to expound on the errors of law that the appellant strongly contends to have identified in the ruling of the lower court in this matter. The Respondents were charged with the offence of murder contrary to Section 209 ofthe Penal Code and were tried in the High Court before Honourable Justice Ligowe. On 19 August 2020, the Respondents were found with no case to answer at the close of the Appellant’s case. During the night of 3 January 2020, Kottana Maria Chidyaonga (the deceased) was in the company of the 4 respondents when she arrived at the Polycare Clinic in Area 3, Lilongwe seeking assistance of an alleged snakebite. Despite some medical intervention, her condition worsened and she was subsequently transferred to Kamuzu Central Hospital where she was later declared dead. A post-mortem determined that the cause of death of the deceased was poisoning from Termik. Subsequent investigations led to the arrest of the four respondents. The Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice FE. Kapanda SC, JA State laid an indictment against the four Respondents on the charge of murder and paraded 13 witnesses in support of the prosecution case. The Respondents herein were charged with the offence of murder contrary to Section 209 of the Penal Code and tried in the High Court, Lilongwe Registry before Honourable Justice Ligowe. On 19 August 2020, the Respondent were found with no case to answer on completion of the prosecution case. Being not satisfied with the judgement, on 20 August 2020, the Appellant filed Notice of Appeal in the High Court, Lilongwe Registry. The Appellant, being dissatisfied with the decision of the High Court in finding that there was no case requiring the Respondents to enter defence, now appeals against the said decision. GROUNDS OF APPEAL The Appellants filed a notice of appeal citing the following five grounds: 1. The learned judge erred in law in misapplying the law to facts. 2. The learned judge erred in law in failing to adequately consider the law regarding evidential and legal burden during criminal trial. 3. The learned judge erred in law in failing to properly direct himself regarding the parties to an offence in criminal trial. 4. The learned judge erred in law in failing to properly direct himself regarding circumstantial evidence. 5. The learned judge erred in law in failing to properly direct himself regarding evidence of an expert witness 6. The learned judge erred in law in failing to properly direct himself regarding role and evidence of an investigator in criminal trial. 7. The learned judge erred in law in failing to properly direct himself regarding evidence and law during the case to answer stage proceedings in criminal trials. Preliminary objection The 4" respondent filed notice of preliminary Objection in which she was seeking the Court to strike out the appeal on the following grounds; ~3~ Republic vy Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA 1. Notice of appeal was not signed by the Director of Public Prosecutions who is supposed to be the Appellant nor by his legal representative; and it is therefore a nullity; and 2. The grounds of appeal are too vague and wide as to be embarrassing to the 4" Respondent to conduct her defence to the Appeal; and thereby denying the 4" Respondent to conduct her defence to the appeal; and hereby denying the 4" Respondent right to fair trial. ISSUES FOR DETERMINATION What are the issues that arise and fall to be decided in the appeal under consideration by this Court? As this Court understands it, there is principally one issue that arises in this appeal. It is whether the trial court erred at law in determining that there was no case to answer? It is now necessary that this Court should look at the arguments that have been raised by the parties in response to this question. We shall start with the Appellants’ arguments then move on to deliberate those put forward by the Respondents. THE PARTIES ARGUMENTS The Appellant’s It is argued by the Director of Public Prosecutions that from the 13 witnesses paraded in support of the prosecution case, the evidence of these witnesses demonstrated that: the cause of death was poisoning due to administration of Termik and that the amount and diluted nature of the Termik found in the deceased’s system was incompatible with self-administration; the deceased had not taken any food or drink, other than one glass of wine at around 8pm, in the period from around 3pm to 11pm on 3 January 2020; the deceased had been in the company of the 4" Respondent from around 3pm to 11pm and then in the company of all four Respondents from around midnight till the time she was rushed off to hospital. ~4n Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA The Director of Public Prosecutions further submitted that an external examination of the body of the deceased, by several different experts, did not reveal any snake bite wounds. And, that an internal examination revealed the presence of semi digested food namely rice, beef and alcohol in the stomach of the deceased. The State, through the Director of Public Prosecutions, went on to contend that the trial court erred in law in its finding of case to answer: in misapplying the law to the facts; in failing to adequately consider the law regarding the evidential and legal burden during criminal proceedings; in failing to properly direct itself regarding the parties to an offence in criminal law; in failing to properly direct itself regarding circumstantial evidence; in failing to properly direct itself regarding evidence of an expert witness; in failing to properly direct itself regarding the role and evidence of an investigator in a criminal trial; and in failing to properly direct itself regarding evidence and law of the applicable standard at the stage of case to answer. It is the State’s contention that sufficient evidence was adduced in the court below to establish a prima facie case in accordance with the law and applicable jurisprudence. The State further argued that the evidence before trial court established all elements of of murder, namely: 1) That Kotanna Maria Chidyaonga had died; 2) That her death was due to the administration of Termik and was before unlawful; 3) That the Respondents through act and omission had cause her death; and that the respondents had acted with Malice aforethought. The State differs with the trial court in the causation of death. It argued that in terms of Section 215 of the Penal Code causation does not require that “no one else” be involved in causing death of the deceased but rather that causation envisions a situation where multiple individuals may be held accountable for causing the death of an individual as long as their conduct falls within the ambit of section 215 of the Penal Code. Thus, the State submits that when considering omission by the Respondents, it is evident that the respondent’s failure to declare what had brought them to the Clinic at any time in the treatment of the deceased hastened her passing. Further, the State agreed with the trial court that suspicion is not sufficient for finding a prima facie case. However, the State contended that the trial court misdirected itself as to the applicable standard of proof at the close of the prosecution’s case. Therefore, the State submitted that all elements of the offence of murder as discussed above had been made out to the requisite standard, that is to say, on balance of probabilities. ~5~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA The State further argued that section 21 of the Penal Code clearly establishes groups of people who may be charged as principal offenders, including but not limited to individuals who aid and abet in the offence, whether by omission or positive action. Further, the State submitted that the section recognises that when two or more people form a common intention to carry out an unlawful purpose, each participant may be held accountable for the reasonably foreseeable offence that occurs as a consequence of the said common intention. In the view of the State, it is indisputable that all Respondents agreed to proceed to Polyclinic and obtain medical assistance based on a lie. Lying to the doctors resulting in misdirected treatment was reasonably foreseeable consequence and the death of the deceased was reasonably foreseeable. The death of the deceased was probable consequences of the Respondents’ common intention to fraudulently obtain medical aid. The State further argued that death of deceased was highly probable consequence of the administration of Termik and that the Respondents’ conduct in not reporting these facts to a hospital or police station demonstrated that they, at the very least, aided and abetted the perpetrator of the offence to commit the offence of murder by poisoning. The State is of the further view that all Respondents, regardless of whatever role was assigned to them in the physical commission of the administration for Termek, aided and abetted in the commission of Murder. Thus, the trial court misdirected itself as to who the principal offenders were and did not sufficiently consider the circumstantial evidence before it. Did the State establish a prima facie case? It is the State’s contention that sufficient evidence was adduced in the lower court to establish a prima facie case in accordance with the law and applicable jurisprudence. The State submits that on the evidence before the trial court as to the cause of death of the deceased, the only conclusion that could be drawn was that the deceased’s cause of death was the unlawful administration of Termik. It is the further argument of the State that the question that arises is whether or not it can be said that the Respondents caused the death of the deceased? The State submits that there is significant evidence that the respondents caused the death of the deceased. The State submits that, in view of the conduct of the respondents and the factual inconsistences and inaccuracies of the Respondent’s story of what happened on the material day, there is only one conclusion to be made, namely, that the story of the snakebite put up by them was a fabrication. It is the view of the State that it is a fabrication that had not been sufficiently thought out or ironed out at the time the respondents went to the clinic leaving their story open ~6~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA for each to flesh out as they deemed fit, resulting in inaccuracies and inconsistencies in their stories at Kamuzu Central Hospital. The State further submits that the doctrine of last seen places a burden on the individuals whom the deceased was last seen with to account for the last movements of the deceased. In the present circumstances, the State added, the accounts given by the respondents are false, which leaves one to wonder what would motivate a person to lie about the last moments of a dead friend? The State submits that the sole motivation for such a lie would be that the truth is self- incriminatory. Thus, in the opinion of the State, where the repercussions of such a lie at the most extreme would be the imposition of a death penalty, the State cannot but opine that the truth must be grave indeed. The State further submits that even were this Court discounts the doctrine of last seen, the lies of the Respondent are probative of guilt as the sole reason any person would lie and risk the death sentence must be that telling the truth may also leave them facing an equally dire situation. It is the further submission of the State that there was no snakebite but that the deceased and the Respondents identified a need for medical care which was sought from Polycare Clinic. The State continued to argue that this this medical aid was sought on the basis of a fictitious snake bite, meaning that the respondents made a conscious decision to hide the true reason they sought medical aid for the deceased. It is the argument of the State that in accordance with section 215 (d) of the Criminal Procedure and Evidence Code the evidence discloses that the conscious failure by the respondents to disclose the truth of why they went to Polycare Clinic at midnight, even as the deceased’s condition worsened, hastened the death of the deceased. The State further submits that the totality of the evidence including: the conduct of the 4" Respondent, the presence of undigested food in the deceased’s stomach even though she had not eaten at work, the conduct of the respondents at Kamuzu Central Hospital and the alleged fabrication of the snake bite point to only one conclusion, namely that the respondents not only knew what caused the death of the deceased but they were party to it. Therefore, in addition to having caused death by omission, the State submits that the respondents also caused death by their positive actions. The State argues that the Respondent caused the death of the deceased with malice aforethought. It added that malice aforethought as defined by section 212 of the Penal Code incorporates a number of different types of intent and that in the matter at hand the applicable wh a Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA mens rea is that articulated in section 212 (b) of malice aforethought. It added that malice aforethought as defined by section 212 of the Penal Code namely that the accused person acted with knowledge that death or grievous bodily harm may be occasioned but was indifferent to it or hoped it would not be caused. The State submits that an objective assessment of the conduct of the Respondents and the events of the material night demonstrate that the respondents knew that the deceased faced a risk of death or grievous bodily harm. As regards whether the prosecution established all the elements of Murder, the State submits that the evidence before the trial court established all the elements of murder, namely: that Kotanna Maria Chidyaonga had died; that her death was due to the administration of Termik and was therefore unlawful; that that the respondents through act and omission had caused her death; and that that the respondents had acted with malice aforethought. The State took issue with the finding of the Court a quo that the absence of information of when the Termik had been administered meant that the prosecution had failed to establish who was responsible for the deceased’s death. It is the submission of the State that, in terms of section 215 of the Penal Code, causation of death does not require that “no one else” be involved in causing the death of the deceased. Rather, the causation envisions a situation where multiple individuals may be held accountable for causing the death of an individual as long as their conduct falls within the ambit of the section. It is the further submission of the State that the trial court misdirected itself as to what the standard of proof should be at the close of case to answer. It added that the standard, as put in the Gwazantini case, focuses on whether the offence is made out and whether the prosecution witnesses have been deemed non credible. The State submits that based on the judgment, with the exception of the issues pertaining to section 215 of the Penal Code, the discourse demonstrates that the trial court felt all the elements had been made out and no prosecution witness had been discounted on grounds of credibility. The State closed its arguments by addressing the court on who the principal offenders were in this appeal by making reference to Section 21 of the Penal Code. It is the submission of the State that the respondents all formed an agreement to proceed to Polyclinic and obtain medical assistance based on a lie. The State therefore submits that the death of the deceased was a probable consequence of the respondents’ common intention to fraudulently obtain medical aid. Furthermore, the State argues that the conduct of the respondents during the course of the material day demonstrates that they were party to the Termik administration, a known poison, to the deceased. It adds that death was a highly probable consequence of the administration of ~Rr~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Termik and the respondents conduct in not reporting the facts to a hospital or police station demonstrate that they, at the very least, aided and abetted the perpetrator of the offence to commit the offence of murder by poisoning. The State therefore submits that all the respondents, regardless of whatever role is assigned to them in the physical commission of the administration of Termik, aided and abetted in the commission of murder. The State went on to observe that the trial court in its determination of who can be identified as a principle offender, focused on the lack of evidence that the 4"" Respondent had coerced the deceased to take the glass of wine and also the lack of evidence as to where the rice and meat in the deceased’s stomach had originated from. The State submits that the Court a quo misdirected itself as to who principal offenders are and did not sufficiently consider the circumstantial evidence before the trial court. In conclusion, the State submits that the trial court misdirected itself on the law and jurisprudence applicable in the circumstance and that these errors in law significantly impacted the analysis of the evidence before the trial court resulting. It therefore prays that its appeal be allowed. Respondents’ arguments summarized 15t Respondent On the burden of proof, the 1*t Respondent submits that the State erroneously argues that the trial court used a test stricter than that used in the Gwanzantini case. Further, it is the argument of the 1 Respondent the State would want the Court to believe that mere suspicion without evidence should be enough to call upon an accused to defend themselves. The 1** Respondent is of the opinion that the State’s position lacks legal basis in as far as there is no evidence pointing to an accused person, the court will not impute guilt based on suspicions. The 1* Respondent further notes that the State would want this Court to believe that the Respondents at one time or another lied and that that should be constructed against them. It is the submission of the 1 Respondent that the question of the Respondent’s lying does not arise as the Respondents did not testify before the trial court. Respecting whether the State has proved the elements of the office of murder, the 1* Respondent notes that it seems the State’s contention is that the deceased was not bitten by snake. It is submitted by the 1‘t Respondent that if that is the case, then it is a matter of fact and not law as envisaged in section 11 (3) of the Supreme Court of Appeal Act. ma ow Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA The 1* Respondent went on to submit that the totality of the state evidence was that the deceased was bitten by a snake, went to the hospital and was administered with what was in fact a wrong drug and died while receiving treatment. He added that actually there two versions of the cause of death from the state witness i.e. snake poisoning and administration of a wrong drug, vecuronium bromide. Further, the 1‘ Respondent submitted that there was yet evidence before the Court that the deceased died as a result of Termik poisoning. Thus, bringing in a third alleged cause of death. It is the argument of the 1st Respondent that the state has failed to establish what really caused the death of the deceased and therefore it has failed to prove an essential element of murder. It is the 1t Respondent’s further submission that there is no nexus between cause of death and his actions. He argues that there is nowhere in the evidence of the State where there was any suggestion that he did any act that might have accused the death of the deceased in this matter. The 1* Respondent observes that the State has introduced the doctrine of last seen to argue that the Respondents were the last people to be seen with the deceased before her passing. It is the 1* Respondent’s contention that the doctrine does not apply as the deceased attended the clinic whilst alive and well. Thus, the doctrine of last seen cannot apply. As regards the question of malice aforethought, it is the further submission of 1** Respondent that the State, having brought three different versions on the cause of death and having failed to show which acts of the 1*t accused person might have caused the death in question, it would be academic to start talking about malice aforethought. He adds that in any event it had become apparent that there was no suggestion from the prosecution case that any of the accused persons had reasons to kill the deceased. In sum, the 1 Respondent submits that the State failed to prove its grounds of appeal and prays to this court should dismiss the State’s appeal and uphold the trial court’s finding that the he and the rest of the Respondents have no case to answer. 24 and 3" Respondents; The 2™ and 3 Respondents have argued that none of the witnesses implicated them. They stated that the first and second prosecution witnesses,who interacted with the deceased at Khala Restaurant, did not provide any evidence against the Respondents. Further, it is argued by them that no evidence of poisoning was provided. The 2" and 3™ Respondents added that the ~10~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA evidence of the Appellant showed that the deceased was actually bitten by a snake and to this end the deceased was attended at Care Poly Clinic on a diagnosis of a snake bite but was administered with a wrong drug, vecuronium bromide. They further argued that the evidence showed that the cause of death of the deceased was either snake venom or vecuronium bromide. It was also the argument of the 2" and 3" Respondents that the Appellant did not satisfy any of the elements of the offence of murder against the Respondents, most importantly, against the 2"4 and 3" Respondent. The long and short of it was that the 2" and 3 Respondents submitted that the court below did not misapply the law to the facts. It is their view that the Court a quo properly considered the law regarding evidential and legal burden during criminal trial. Finally, it is the 2" and 3 Respondents’ prayer that the appeal be dismissed. The 4 Respondent. The 4" Respondent filed notice of objection that the appeal be dismissed on the ground that the notice of appeal was not signed by the Director of Public Prosecutions who is supposed to be the Appellant or by his legal representative. Therefore, it was argued, the appeal is a nullity. In advancing the ground, the 4" Respondent relied on Section 11(3) of the Supreme Court of Appeal Act and Order IV rule 4 (4) of the Supreme Court of Appeal Rules. She submits that the said Section 11(3) of the Supreme Court of Appeal Act only recognises the Director of Public Prosecutions and no one else as the person who can appeal against the finding of acquittal and that it is only the Director of Public Prosecutions who can sign the notice of appeal. Further, the 4"" Respondent argued that the signing the Notice of appeal or the taking out of the Notice of appeal by someone who is not the Director of Public Prosecutions or Legal Practitioner was not a matter of irregularity but rather nullity. Therefore, it is the argument of the 4" Respondent that since the Notice of Appeal is the founding document once it its declared to be invalid or a nullity the rest of the document crumbles leading to there being no appeal. It is the further,contention of the 4"" Respondent that the appeal be dismissed on the ground that the grounds of appeal lack particulars of points of law or factual findings that the Appellant is challenging. She argued that the grounds of appeal are so wide as to allow the Appellant to argue anything under the trial court’s judgement and thereby embarrassing to the 4% Respondent in the preparation of her defence. ~ll~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA On the merit of the appeal, the 4" Respondent argued that the present grounds of appeal are without merit. It is the view of the 4° Respondent that she finds it difficult to discern what really the Appellant is alleging to be points of law that the trial judge misapplied. She further submits that the Appellant is simply contending that the acquittal was against the weight of evidence available to the trial judge but in her view the acquittal was as a result of there being no evidence as to who killed the deceased. Further, the 4°" Respondent argued that it is the duty of the state or prosecution to prove each and every element of the offence of murder. Thus, for her to be found guilty of murder, the Appellant ought to have established or proved through evidence that by unlawful act or omission, she caused the death of the deceased and that she did so with malice aforethought. But, as admitted by the Appellant, there was no direct evidence connecting the 4"" Respondent to the death of deceased. The 4" Respondent further submitted that it is clear that there were three plausible causes of death of the deceased, namely, death caused by Venom, termik and negligence at the Clinic by administration of wrong drugs. As a consequence, the 4" Respondent added, the Appellant could not rely on circumstantial evidence to secure conviction against the 4" respondent. Thus, such inconsistencies in the cause of death of the deceased ought to be resolved in favour of the 4" Respondent. It is the further argument of the 4" Respondent that there was no scintilla of evidence that any of Respondents administered poison to the deceased. She adds that it was the Clinic that killed the deceased. Therefore, it is submitted that the trial judge had regarded all evidence that was before him and all principles related to circumstantial evidence. Thus, there can be no suggestion that there was an irregularity or that the judge exercised his discretion in a manner that vitiated his decision. In sum, the 4"" respondents prays that the Notice of Appeal be struck out on the ground that it was not signed by the Director of Public Prosecutions and it is therefore a nullity. Further, it is the contention of the 4"" Respondent that the grounds of appeal are too vague and wide as well as embarrassing to her to conduct her defence to the appeal thereby denying her the right to a fair trial. Further, she prays that the appeal be dismissed as there is no meritorious ground for this Court to set aside the trial court’s decision acquitting her and that there was no case made out requiring the 4 Respondent to enter a defence to the charge of murder against her. ~12~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA As this Court understands it, the main question raised by the appeal is whether the trial court erred at law in its determination on no case to answer. The Court will now proceed to give the position of the law as well as make findings on the issue. THE LAW AND DISCUSSION (Analysis of the law and determination) It is now necessary that this Court should look at the relevant law in this appeal and apply it to the matter at hand. As this Court does so it will likewise make findings and conclusions on the evidence on record. ANALYSIS OF THE LAW Section 11(3) of the Supreme Court of Appeal Act states that: “The Director of Public Prosecutions may appeal to the Court against any judgment, including a finding of acquittal, of the High Court, if, and only if, he is dissatisfied with such judgment upon a point of law. Subject as aforesaid, no appeal shall lie against a finding of acquittal made by the High Court.” As we undetstand it, the above provision means that the Director of Public Prosecutions has the right to challenge, or appeal, any decision made by the High Court, including a verdict of acquittal (when the defendant is found not guilty). However, this appeal can only be made if the Director of Public Prosecutions is dissatisfied with the judgment based on a legal point. In other words, the Director of Public Prosecutions can only appeal if he/ she believes there was an error in the application or interpretation of the law. It is also important to note that, except for this specific circumstance, there is generally no opportunity for appealing a finding of acquittal by the High Court. Further, Section 12 (1) and (4) of the said Supreme Court of appeal Act provides that;: “The Court shall allow an appeal under section 11 if it thinks that the judgment appealed against should be set aside— (a) on the ground that it cannot be supported having regard to the evidence; (b) on the ground of a wrong decision of any question of law; or (c) on any ground that there was a miscarriage of justice, and in any other case shall dismiss the appeal. nt 13 Republic vy Mtilosanje Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Provided that the Court may, notwithstanding the fact that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” This provisio outlines the conditions under which this Court can allow an appeal under section 11. This Court may set aside the judgment appealed against if it believes: (a) The judgment cannot be supported based on the evidence presented; (b) The judgment is based on a wrong decision regarding any question of law; and (c) There was a miscarriage of justice, meaning that the legal proceedings did not result in a fair or just outcome. However, in any other case, the Court will dismiss the appeal. It is important to note though that even if the Court believes that the point raised in the appeal could be decided in favor of the Appellant, they may still dismiss the appeal if there has been no substantial miscarriage of justice. This means that if this Court determines that despite any potential errors in the judgment or proceedings, the overall outcome was not significantly unjust or unfair, it may choose to reject the appeal. And Section 12 (4) of the said Supreme Court of appeal Act stipu;ates that “On an appeal under section 11 (3) the Court shall hear and determine the question or questions of law arising on such appeal and may remit the case to the High Court with the opinion of the Court thereon with such directions as it may deem necessary, or may make such other order in relation to the appeal as to the Court may seem fit, or may dismiss the appeal” What does this provision entail? It describes the powers of this Court when hearing an appeal under section 11(3). When a question or questions of law arise in such an appeal, the Court has the power to do the following: 1. Hear and decide on the legal issues brought forward in the appeal; 2. Remit the case back to the High Court, along with the Court's opinion on the matter, and provide any necessary directions for further action or consideration; 3. Make any other order relating to the appeal that the Court deems appropriate; 4. Dismiss the appeal if it is not deemed meritorious. These powers give the Court the ability to thoroughly examine the legal aspects of the case and make decisions accordingly. The Court may either send the case back to the High Court with a VA ws Republic vy Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA guidance, make a different order, or ultimately reject the appeal if there are no grounds for its acceptance. Delegation of power to prosecute Section 100 of the Constitution provides for delegation of power to prosecute. It states: “(1) Save as provided in section 99 (3), such powers as are vested in the office of the Director of Public Prosecutions may be exercised by the person appointed to that office or, subject to his or her general or special instructions or to an Act of Parliament, by— (a) persons in the public service acting as his or her subordinate; or (b) such other legally qualified persons on instructions from the Director of Public Prosecution” As we understand it, Section 100 of the Constitution outlines the distribution of powers within the office of the Director of Public Prosecutions. It means that unless specified otherwise in section 99(3) of the Constitution, the powers granted to the Director of Public Prosecutions can be exercised by any of the following: the person appointed to that office, who is the primary authority; persons in the public service who act as subordinates to the Director, with their authority derived from their position in the public service; and other legally qualified individuals who have received instructions from the Director of Public Prosecutions. Further, the exercise of these powers may be subject to certain general or special instructions provided to the individuals holding such powers, or to specific legislation enacted by Parliament. Case to answer In criminal proceedings, the burden of proof lies on the prosecution to prove the charge against the accused person!. With regards to whether there is a case to ansewer, Section 254 of the Criminal Procedure and Evidence Code is instructive and provides that: “If, upon taking all the evidence referred to in section 253 and any evidence which the court may decide to call at that stage of the trial under section 201, the court is of opinion that no case is made out against the accused sufficiently to require him to make a defence, the court shall deliver a judgment in the manner provided for in sections 139 and 140 acquitting the accused. ' See Woolmington v DPP [1935] AC 462 on 15 Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA (2) If, when the evidence referred to in subsection (1) has been taken, the court is of opinion that a case is made out against the accused sufficiently to require him to make a defence in respect of the offence charged or some other offence which such court is competent to try and in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend the same, subject to section 151” The section cited above outlines the procedure and criteria for a Court to determine whether a case should proceed to further trial or if the accused should be acquitted at that the stage od =f the closure of the prosection’s case. It further states that after taking into consideration all the evidence mentioned in sections 253 and 201, if the Court is of the opinion that there is not enough evidence against the accused to require them to mount a defense, the Court should deliver a judgment according to the provisions in sections 139 and 140, resulting in the acquittal of the accused. On the other hand, should the Court determine that there is sufficient evidence to warrant the accused to present a defense for the offense charged or any other offense falling under the court's jurisdiction, and it believes that it should be tried, the Court will assess the recorded charge against the accused and decide if it is adequate. If necessary, the court may amend the charge, subject to section 151. In Gwazantini v The Republic’, the Court considered the principle of prima facie and held as follows; “... It requires that once the prosecution case has been closed the Court should take stock of the case so far presented before it. The provision mandates the Court to do one of two things depending on the opinion it forms after so assessing or evaluating the case.....it is clear beyond per adventure to me, that if indeed I find that either an element of the offence charged has not been covered in evidence, or that even if I observe that all elements of the offence charged have been covered by the evidence I at the same time consider the said evidence as being so discredited by cross-examination or as being so manifestly unreliable, I have no choice but to acquit the accused. Conversely it is equally my very clear understanding of the law that if I otherwise find all the elements of the offence charged covered by the evidence proffered by the prosecution and if at 2 [2004] MLR 75 ~16~ Republic vy Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA the same time, I find that the said evidence has neither been so discredited nor been shown to be otherwise so manifestly unreliable, I ought to put the Accused on her defence”. In Republic v Sam Kaumba and Another’, the Court properly summarized the law on no case to answer in the following manner: “It is trite that a prima facie case is on which a reasonable tribunal properly direct its mind to the law and evidence would convict in the event that the accused offers not to make defence.” This statement is emphasizing the concept of a "prima facie case" in legal proceedings. In summary, a prima facie case provides enough evidence for a reasonable tribunal to convict the accused if they choose not to defend themselves. Thus, prima facie case means that the prosecution has to present a prima facie case that the accused is guilty of the crime charged. If the prosecution cannot present evidence supporting each component of the crime, the defendant must be acquitted from the charges. In a prima facie case, the accused has the opportunity to offer evidence disputing each element of the crime that the prosecution has established. On the other hand, the prosecution must prove each element beyond a reasonable doubt. The accused's main goal will usually be just to cast doubt upon the prosecution's proof, and if they succeed in doing so, they must be acquitted. Further, it is well to note that at law suspicion and an opportunity to commit a crime does not constitute evidence of guilt*. Law relating to the offence of Murder Respecting the offence of murder, section 209 of the Penal Code states that: “Any person who of malice aforethought causes the death of another person by an unlawful act or omission shall be guilty of murder.” Thus, for the offence of murder to be proved there has to be a death so caused; the death so cased must be connected to the accused; and the accused must have acted with malice aforethought®. Further, in Republic v Kamwala © the Court rightly stated that the onus is thus placed on the prosecution to prove that a death was indeed caused, and ascertain 3 Criminal Case Number 02 of 2015 (unreported) 4 Chief Public prosecutor v Nkosi and another [1990] 13 MLR 97 > R. v Steven (178 of 2011) [2016] 6 Criminal Case No. 22 of 2013) [2018] 2 we TT oe Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA the cause of death eliminating other. possibilities, and that accused persons in fact caused that . death with an lawful act and that unlawful act was accompanied by malice aforethought. Thus, the actus reus or physical element of the offence in this case involves administering the termik that allegedly caused the death of the victim Kottana Chidyaonanga. The state had to make out the case that the cause of death was termik and further that the 18‘ Respondent administered the said termik. The mens rea or mental element of the offence is malice aforethought and is defined in section 212 of Penal Code as being viz. a) intention to cause death of or to do grievous bodily harm to any person whether such person is the person actually killed or not; b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or not, or by a wish that it may not be caused. It therefore follows that if the State makes out a case that the Respondents or anyone of them performed the unlawful act leading to the death of the death of the deceased, they have to further prove that he acted so with requisite mental element. As it were, in the case at the hand the State’ s evidence should be conclusive to the effect that the cause of death was poisoning through termik, and that the termik was administered by the Respondents or anyone of them with an intention to cause death or grievous bodily harm to a person. The mental element for the offence of murder as stated in the said section 209 of the Penal Code is malice aforethought. Section 212 of the Penal Coded provides circumstances which suffice to prove malice aforethought or in other words imputes intention. As we understand it, the following are the circumstances: First, malice aforethought is deemed to be established where there is an intention to cause the death or to do grievous harm to any person whether such person is the person actually killed or not’. Secondly. malice aforethought is also proved if accused has knowledge that the act will probably cause death even though one be indifferent about the consequences of his actions. The provision requires knowledge on the part of a person and this applies a subjective test®. Thirdly, malice aforethought is deemed to be established where an accused has an intention to commit a felony’. 7R v Macheso 1 ALR Mal 102; Osman v R 5 ALR (Mal ) 225 8 Nankondwa v R SCA 1966 -68 ALR (Mal) 388 ° Kholivo v R 3 ALR Mal 484; Billiati v R 5 ALR Mal 281. xe [9x0 Republic vy Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA The Doctrine of Last Seen The Appellant has raised the doctrine of Last Seen in support of the appeal. The Supreme Court of Appeal of Nigeria decision in Tajudeen Iliyasu v The State '° is illuminating on the doctrine of last seen. It rightly stated that the doctrine of last seen means that the law presumes that the person last seen with the deceased bears full responsibility for their death if it turns out that the last person seen with the deceased is dead. The burden then shifts to the accused person to give an explanation relating to how the deceased met their death. In the absence of an explanation by an accused person, a court will be justified in drawing the inference that the accused person killed the deceased. Furthermore, in Ayami v Republic” the Supreme Court of Appeal held that that where the appeal is based on matters relating to evidence, the appeal proceeds by way of rehearing. Respecting the role of an appellate court, in Munthalika and Another v Chilima and the other MSCA Constitutional Appeal No. 1 of 2020, this Court had this to say which is instructive: “The role of an appellate court is not to retry a case, but to determine whether there was a reviewable error made by the Court below or trial court. The nature of an alleged error will determine whether and how an appellate court is permitted to interfere with the trial court’s decision” As to what, by way of rehearing connotes, this Court has had recourse to the Munthalika case which adopted the definition in Steve Chingwalu and DHL International v Redson Chahuka and Hastings Magwirani'?. In Steve Chingwalu and DHL International v Redson Chahuka and Hastings Magwirani this Court put it as follows: “Finally, we have in mind that an appeal to this Court is by way of rehearing which basically means that the appellate court considers the whole of the evidence given in the court below and the whole course of the trial; it is as a general rule, a rehearing on the documents including a record of the evidence. The case of Msemwe v City Motors Limited 15 MLR 302 is to that effect. In the case of Cognlan v Cumberland (1898) 1 Ch 704, cited by Counsel for the respondents. Lindsey MR. stated. Even where.. .the appeal turns on a question of fact, the court has to bear in mind that its duty id to rehear 10 (2013) LCN/6055 CA 2 AIIN. LR 11 (1990) 13 MLR 19(SCA) 2 [2007] MLR 382 ~19~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA the cases, and the court must reconsider the materials before the judge. as such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgement appealed from, but carefully weighing and considering it, and not shrinking from overruling it if on full consideration it comes to the conclusion that it is wrong’’? We further opined in the Mutharika case that: “On the matters of law, an appellate court can reverse trials courts finding if the law was misapplied to the found facts. Questions of law are questions that deal with the scope effects and application of a legal rule or test to be applied in determining the rights of the parties. These questions will be reviewed by appellate courts using the standard of review of “correctness”. That is to say, a trial court’s order must be correct in law. Where a legal error can be demonstrated by an appellant, the appellate court is at liberty to replace the opinion of the trial judge with its own. In contrast, questions of fact deal with what actually took place between the parties. These questions will call for the standard of review of “palpable and overriding error”. This accord a high standard of deference towards findings of the trial judge. An appellate court many only intervene on a question of face where the error is obvious and had an effect on the outcome of the case”. This Court further quotes the Chingwalu case where it set the position at law regarding appeals involving issues of fact as follows: “The position of the law regarding appeals involving issues of fact is that this Court is slow to interfere with findings of facts, unless there exists some misdirection or misreception of evidence or unless the decisions are of such a nature that, having regard to the evidence, no reasonable man could make such a decision”!*. Further, this Court applied the case of Kenya Airports Authority v Mitu-Belle Welfare Society and 2 Others'*, in which the Supreme Court of Kenya expounded the law regarding appeals involving issues of fact: 13 Tbid. at 388 4 Thid. at 388 15 (2016) EKLR a OG ws Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA “In our consideration of this appeal, we remind ourselves that there are issues of fact and points of laws that have been argued before us. This Court, as an appellate court, will rarely interfere with findings of fact by a trial court unless it can be demonstrated that the judge has misdirected himself or acted on matters which he /she should not have acted upon or failed to take into consideration matters which he/she should have taken into consideration and in doing so arrived at a wrong conclusion”. On the question of a case to answer, section 313 (1) and (2) of the Criminal Procedure and Evidence Code provides as follows: “(1) if, when the case for the persecution is closed, and upon hearing any evidence which the High Court may decide to call at the stage of the trial under section 201, the High Court is of the opinion that no case is made out against the accused sufficiently to require him to make a defence, the High Court shall discharge the jury and record an acquittal. (2)if, when the case for the prosecution is closed, and any evidence called under section 201 has been taken, the High Court is of the opinion that a case is made out against the accused sufficiently to require him to make a defence, the High Court shall inform the accused that the right to remain silent or to give evidence on oath, and thereupon call on him to enter his defence and to give evidence. What comes out clearly is that after the prosecution has closed its case, the court must decide whether the evidence discloses a case to answer against the accused persons on the court charged, it is, thus, imperative on the court after the prosecution closes its case that it makes a finding of whether the accused persons have a case to answer. The court, therefore, must examine the prosecution’s evidence to decide whether there is sufficient evidence to justify calling upon the accused person to give his defence. In Rep v Gwazantini '° the court propounded the following principles: that if, on the evidence so far on record, the court be of the view that no case had been made out against the accused sufficiently to require him/her to make a defence, it should outright acquit the accused; that if, however, the court be otherwise of the mind that a case has been made out against the accused sufficiently to require him/her to make a defence in respect of the offence charged, it should proceed to put the accused on his/her defence; that at this stage the court is not required to 16 (2004) MLR 75 (HC) oF] Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA check whether or not the prosecution has proved their case beyond a reasonable doubt; that if indeed the court finds that either an element of the offence charged has not been covered in evidence, or that even if it observes that all elements of the offence charged have been covered by the evidence but at the same time consider the said evidence as being so discredited by cross-examination or as being so manifestly unreliable, the court would have no choice but to acquit the accused; and that conversely it is equally the law that if the court finds that all the elements of the offence charged covered by the evidence proffered by the prosecution and if at the same time the said evidence has neither been so discredited nor been shown to be otherwise so manifestly unreliable, the court ought to put the accused on her defence. Further, in the Gwazantini case, the Court quoted with approval the English Practice Direction issued by Lord Chief Justice Parker which is in the following terms: “A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. .... If however a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudication tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. Ifa reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.” As it were, a submission of "no case to answer" can be successful when the evidence presented by the prosecution is discredited or deemed unreliable through cross-examination, to the point where no reasonable court could safely convict based on it. However, when determining whether there is a case to answer, the decision should not solely depend on whether the Court would convict or acquit at that stage. Instead, the focus should be on whether the evidence is sufficient for a reasonable Court to potentially convict. In essence, if a reasonable Court could potentially convict based on the evidence presented so far, then there is indeed a case to answer. Determinations Preliminary Objection by the 4" Respondent at Pw Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA It is pertinent to mention that the 4 Respondent filed a Notice of Preliminary Objection. At the hearing of the appeal she raised the following as the grounds of objection: 1. That Notice of appeal was not signed by the Director of Public Prosecutions who is supposed to be the appellant nor by his legal representative; and it is therefore a nullity; and 2. The grounds of appeal are too vague and wide as to be embarrassing to the 4" Respondent to conduct her defence to the Appeal; and thereby denying the 4" Respondent to conduct her defence to the appeal; and hereby denying the 4” Respondent right to fair trial. The 4" Respondent has relied on Section 11(3) of the Supreme Court of appeal Act and Order IV rule 3 and 4 of the Supreme Court of Appeal Rules in raising these objections. Further, the 4" Respondent relies on the sworn statement of her Counsel to support the Notice of preliminary objection. It is the contention of the 4" Respondent that the notice of the appeal that was filed in this Court on 20 August 2020 was not signed by the Director of Public Prosecutions or his legal representative but rather by the prosecutor which is contrary to Section 11 (3) of the Supreme Court of Appeal Act. Further, the 4"" Respondent contends that the grounds of appeal in the present appeal are too vague and wide for the 4"" Respondent to appreciate and defend her case and that is going to jeopardise the 4" respondent’s right to fair trial. Thus, defeating the whole purpose of appeal. It is true that according to the wording of Section 11 (3) of the Supreme Court of Appeal Act recognises the Director of Public Prosecution to be the one who has the power to appeal against the finding of acquittal and that such power cannot be delegated. The said Section 11 (3) of the Supreme Court of Appeal Act it provides that: “The Director of Public Prosecutions may appeal to the Court against any judgment, including a finding of acquittal, of the High Court, if, and only if, he is dissatisfied with such judgment upon a point of law. Subject as aforesaid, no appeal shall lie against a finding of acquittal made by the High Court.” This Court finds and concludes that the 4"" Respondent has failed to appreciate the import and meaning of Section 100 which provides room for the Director of Public Prosecution to delegate his/her power. The Section instructively provides that; wt OF es Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA “(1) Save as provided in section 99 (3), such powers as are vested in the office of the Director of Public Prosecutions may be exercised by the person appointed to that office or, subject to his or her general or special instructions or to an Act of Parliament, by— (a) persons in the public service acting as his or her subordinate; or (b) such other legally qualified persons on instructions from the Director of Public Prosecution” As observed earlier, Section 100 of the Constitution outlines the distribution of powers within the office of the Director of Public Prosecutions. It means that unless specified otherwise in section 99(3) of the Constitution, the powers granted to the Director of Public Prosecutions can be exercised by any of the following: the person appointed to that office, who is the primary authority; persons in the public service who act as subordinates to the Director, with their authority derived from their position in the public service; and other legally qualified individuals who have received instructions from the Director of Public Prosecutions. Further, the exercise of these powers may be subject to certain general or special instructions provided to the individuals holding such powers, or to specific legislation enacted by Parliament. Further, it is well to mention that the matter was prosecuted by the Director of Public Prosecution in the court below and that the office of the Director of Public Prosecutions has a number of public servants that work as his subordinates or under his instructions. Therefore, the mere signature on the notice of appeal by any other officer from the office of the Director of Public Prosecutions or Prosecutor cannot be regarded as a nullity. It is this Court’s view and finding that the notice of appeal can be signed or taken out by any public officer in the office of the Director of Public Prosecutions or working under his/her instructions. Turning to the objection that the grounds of appeal are too vague and wide as to be embarrassing to the 4" Respondent to conduct her defence to the Appeal, the Respondent argues that the Appellant has not particularized the points of law that the trial judge erred in applying to the given set of facts so as to lead to wrong decision in law. Further, the 4" Respondent has urged this Court to adopt the position at law in Nigeria, Zambia and Zimbabwe and hold that the notice of appeal is a nullity. This Court notes that the record of appeal shows that the notice appeal referred herein was filed on 20 August 2020 and contains seven grounds of appeal. Having appreciated the wording and crafting of the said ground of appeal, this Court is of the opinion that they fall within the dictates of the law. It is found as a fact that it cannot be concluded that the appellant has failed to particularize the points of law wa FA ws Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA the subject matter of the appeal. We do not therefore subscribe to the view of the 4% Respondent. Thus, the prayer to struck out the notice of appeal on basis that the notice of appeal was not signed by the Director of Public Prosecutions and that the grounds of appeal are vague and wide should be dismissed. Having resolved the preliminary objection by the 4™ Respondent, the Court now reverts to the main appeal. It is worth mentioning that this main appeal is rests only on one issue viz. whether or not the trial court erred at law in its determination on no case to answer? The postion of the law in this country is that, in a criminal case, in order for the accused to be called to his/her enter defence, the prosecution ought to raise prima facie case. Failure to do so will result in the acquittal of the accused person. Accordingly, a prima facie case means one on which a reasonable tribunal properly directing its mind to the law and evidence could convict if no explanation is offered by the accused!”. Further, the applicable test to be used in an inquiry of the question of prima facie case was settled in in Gwazantini Case (supra) as follows; “,. It requires that once the prosecution case has been closed the Court should take stock of the case so far presented before it. The provision mandates the Court to do one of two things depending on the opinion it forms after so assessing or evaluating the case.....it is clear beyond per adventure to me, that if indeed I find that either an element of the offence charged has not been covered in evidence, or that even if I observe that all elements of the offence charged have been covered by the evidence I at the same time consider the said evidence as being so discredited by cross-examination or as being so manifestly unreliable, I have no choice but to acquit the accused. Conversely it is equally my very clear understanding of the law that if I otherwise find all the elements of the offence charged covered by the evidence proffered by the prosecution and if at the same time I find that the said evidence has neither been so discredited nor been shown to be otherwise so manifestly unreliable, I ought to put the Accused on her defence”. As observed earlier, there is only on one issue that arises for determination, viz. whether or not the trial court erred at law in its determination on no case to answer. Further, the Court is alive to the fact that the appeal to this Court is by way of rehearing. Thus, in answering the question that arises for determination, this Court will consider the whole of the evidence given "” Chidzero v Rep [1975-77] 8 MLR 229 and also In Republic v Sam Kaumba and Another, Criminal Case Number 02 of 2015 (unreported). ~25 ~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA in the court below and the whole course of the trial so that it determines whether the Appellant raised prima facie case against the Respondents that required them to be called to enter their respective defences. What then was the evidence before the Court below and this Court’s finding amd conclusions from such evidence. Evidence of The State In The Trial Court Esther Mphugera, the cashier at the workplace of the deceased, testified that she was on duty together with deceased at Khala Restaurant. She continued to say that the deceased met with the 4"" Appellant and at around 8 PM in the night, called for a drink which she served them, a glass of wine for the deceased, a cocktail for the 4" Appellant. However, during cross examination, the witness went back on her testimony that she was the one who served the deceased a glass of wine, insisting that it was someone else who she failed to name. This witness further testified that the deceased ordered for the restaurant to be closed at 10 O’clock and dismissed them. She continued to testify that she got a call at around midnight informing her that deceased had been bitten by a snake. The other witness was Zackia Christabel Montersino (PW2), an assistant manager at Khala Restaurant (4 Seasons), where deceased used to work. She told the court that when she reported for work, she discussed the work schedule with the deceased, and saw the 4" Appellant waiting for the deceased. The witness continued to testify that the deceased told her she was feeling unwell and left the work place to go rest for a little while but came back. During cross examination, she stated that she had no idea where the deceased went to rest, and that she did not know whether or not the deceased had a meal or a snack at Khala whilst there. However, shemaintained that it was a possibility that she might have eaten something. She further testified that the deceased had a glass of wine at Khala at around 21:30 hrs. A Mr. Elasimu Lusiyo, the guard of the 1st Respondent’s compound, testified that there was a snake at the compound and that he was called upon to kill it. He told the Court during cross examination that he could not be sure as to the number of people that were present at the scene during the events. He could not confirm the presence of the 2nd Respondent and 3rd Respondent . It was his further testimony that when the 1st Respondent said that the deceased had been bitten by a snake, the deceased was present and did not dispute the fact and that she looked to be in good physical condition. wo QB vw Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Another witness who testified for the State was Rafick Mustaphar (PW4) a pharmacist at Poly Care clinic which first attended to the deceased. He testified that he was on duty on the day the deceased came complaining of snake bite. He stated that the 1st Respondent came for anti- venom as his girlfriend had been bitten by snake. He further testified that he checked the fridge where they normally store such drugs but did not find it. He said that when he asked his colleague, a fellow Pharmacy technician, Hamil, he confirmed that the medicine was Vecuronium Bromide and pointed out that it was in the medicine cabinet. He further testified that when he went and looked in the medicine cabinet he found it and gave to the nurse. Rafick Mustaphar further testified that upon reference to BNF, a reference guide for drugs, he found that the drug he issued to the nurse was for anaesthesia, but was convinced that may be it had some effects on snake venom. The witness averred that he lacked extensive experience in his field having been employed for only a few months. He further stated that he did not know about all the drugs, including Vecuronium Bromide, and anti-venom as his Diploma curriculum did not cover extensive material. The witness also testified that he was supposed to work under a supervisor always but on this night, as with many other instances, he was not under the supervisor and_ that his supervisor rarely came to work. Bahutath Sarif Babu Hussain, the Acting Clinic Manager at Care Poly Clinic where the deceased was first treated, told the Court that he got a call around midnight of 4 January, 2020. As he was not on duty. He testified that could not recall whether the caller was the front desk officer or the pharmacy technician, but the caller was asking about the whereabouts of anti- venom. He testified that he told the caller to ask Hamil, another pharmacy technician at the clinic. The witness further testified that when he came to the office the next morning, he was asked by a desk officer of his knowledge of a patient who the clinic admitted the previous night and had passed on at Kamuzu Central Hospital. He further averred that upon further enquiry, he was told by the desk officer that the deceased and those who accompanied her brought with them a snake and showed it to Dr. Chimutu and that the patient was given anti-venom medicine, which made her start convulsing after 10 minutes. The other witness who testified was Catherine Mwale, a nurse and midwife by profession, who treated the deceased at Care Poly Clinic. She testified that when the patient first availed herself, she checked her vitals. During cross examination, the witness stated that when she checked ~~ Y7 ~ Republic v Mtilosanje Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA her vitals, the patient was in good physical condition, It was her further evidence that she is the one who received instructions from the Doctor on duty and received a bottle of drugs from the pharmacist. She testified further that she was uncomfortable administering anti-venom or work with a snake bite patient as her experience was strictly in the maternity ward. It was her further testimony that she was instructed by the doctor to dilute the drug and locate a vein. She continued resisting but the doctor persisted that she goes ahead with the injection. She testified that the name of the drug was vecuronium bromide. The witness went on to testify that the patient started having convulsions in the midst of the drug being given to the patient. The witness also stated during cross examination that the patient’s condition only seemed to worsen when the injection was being administered and that it could have been in reaction to the drug. The witness further told the Court that she does not have much knowledge on a lot of drugs, especially vecuronium bromide. The medical doctor who first attended to the deceased at Care Poly Clinic in Area 3, Dr. Ruth Chimutu (PW7), testified that the history and physical examination of the patient led to the diagnosis of snake bite and that is the diagnosis she worked on. She further testified that the patient was stable and in good condition when she presented herself at the clinic to seek treatment. She further told the Court aquo that with this diagnosis, she ordered the nurse on duty, Ms. Catherine Mwale, to administer anti-venom. She further stated that during the administration of the anti-venom, the patient started having convulsions, this is when she ordered that the medication be stopped forthwith. She further testified that when she assessed the patient, she noticed that the patient had cardiac and respiratory arrest, this prompted her to start a process of Cardiac Pulmonary Resuscitation and further ordered that the patient be given adrenaline and hydrocortisone. It was further given in her evidence that the patient was then transferred via ambulance to Kamuzu Central Hospital where they continued resuscitative efforts, but they ultimately proved unsuccessful and the patient passed on. The witness continued to state that she then noticed during questioning on the 26 January, 2020 that on the billing sheet of the Deceased at Care Poly Clinic there was Vecuronium Bromide which is not anti-venom and she did not order it. She testified that the drug is administered for anesthetic purposes. During cross examination the witness stated that Vecuronium Bromide is fatal when administered outside theatre and without proper respiratory support. She stated that the respiratory support is necessary as the drug relaxes a patient muscles including respiratory ~28 ~ Republic vy Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA muscles leading to difficulties in breathing. The witness further said that if administered wrongly, the drug could cause respiratory failure. When told that the deceased was said to have died of respiratory failure leading to cardiac arrest, the doctor said it is consistent with Vecuronium Bromide effects and that there was a possibility that the respiratory failure leading to death was caused by the drug. The other witness to testify was Thokozanie Kaunda, a business man, running Khala Restaurant at 4 seasons where the deceased worked. He is a cousin to the deceased. He told the Court that he was not at work on the day in question as he was unwell. He stated that he got a call from his father in India that the deceased was in hospital. He said he rushed to the hospital and upon confronting the 4" Respondent she narrated the events of the night to him, and that the 2"¢ and 3 Respondent reiterated the same story to him. He further told the Court that when he was shown the snake, he would not believe that such a snake could kill a person. He also stated that on his way to the mortuary he saw that the cloth wrapped on the deceased’s head was soaked in blood and this led him to have suspicious and more questions surrounding the death of the deceased. However, during cross examination, the witness acknowledged that he did not refer any of his suspicious or questions to the medical personnel at the hospital. Lt. Dr Gladys Ngondo (PW 9), a Medical Practitioner at Kamuzu Central Hospital as a trainee surgeon, told the Court that she got a call from the 1‘ Respondent at midnight, who informed her that the deceased had been bitten by a snake and that they had taken her to Area 3 Clinic whereupon she advised him to take the patient to Kamuzu Central Hospital where she was to meet them. She further told the Court that she got to Kamuzu Central Hospital shortly before the ambulance ferrying the deceased had arrived. Lt. Dr Gladys Ngondo continued in her testimony and said that when the ambulance arrived she was told by Dr. Chimutu that the patient had received a dose of anti-venom and that she started having convulsions due to it and was not responding. The witness further stated that they had a verbal handover with the Care Poly Clinic staff, and that the staff at Kamuzu Central Hospital continued resuscitative efforts but the patient was still not responding. Thus, she declared the patient dead. The witness further stated that she had a working diagnosis of a snake bite. The witness also acknowledged that she was aware that when the deceased’s death was certified, it was said to be due to respiratory failure leading to Cardiac arrest. When asked about her familiarity with me Vins Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA vecuronium bromide, she stated that it is a fatal drug and that it can only be administered in theatre for anesthetic purposes. She further told the court that when being administered to a patient, there is need for adequate respiratory support. The witness further acknowledged that the cause of death being respiratory failure, there was a possibility that it could have been as a result of the wrong administration of the Vecuronium Bromide. Dr. Charles Dzamalala, a Medical Practitioner specialized in forensic pathology and clinical forensic medicine also gave evidence on behalf of the Appellant. He testified that on the 5 January at Kamuzu Central Hospital mortuary he carried out a medical investigation into the death of Kottana Chidyaonga. He stated that he was informed of the deceased’s history and a snake bite. The witness told the Court a quo that during autopsy he found traces of toxicity and after analysis, he concluded that the deceased had died because of acute termik poisoning based on toxicology tests carried out at theToxicology Unit in Lilongwe. The witness further told the court that with these the results, he abandoned further tests including snake venom and drugs. In cross examination, Charles Dzamalala acknowledged the existence of Vecronium Bromide which was wrongly administered to the patient, but stated that it was not fatal. His opinion is against the testimony of four other qualified medical doctors. He further testified in cross examination that he personally delivered the samples to the laboratory for tests in the absence of any police officer. Professor N. G. Liomba, another Medical Doctor and Pathologist, testified for the State and provided the second opinion to Dr. Dzamalala’s post-mortem report. He testified that he received the samples of the deceased, including post-mortem tissue and photographs of vital organs, from Dr. Dzamalala and concluded that the deceased died of carbonate poisoning, through termik. He further stated that he was not originally in the post-mortem room with Dr. Dzamalala when the latter was collecting samples. On being questioned about Vecuronium Bromide, Professor Liomba stated that he had heard about the drug as a pathologists but that he does not have much expertise. He further told the Court that it is not possible to trace whether poison, in this case, termik was voluntarily ingested or administered by someone. The Laboratory Technician who worked on the samples of the deceased for the post-mortem, Fallison Kaponda, told the Court below that he received the samples of the deceased from Dr. Dzamalala. He stated that the samples were brought by Dr. Dzamalala himself, and that his reason for believing the samples were of the deceased in this case was that they were labelled ot 80) w Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA by Dr. Dzamalala. He further confirmed that it was Dr. Dzamalala who brought the samples by himself and that he was not accompanied by any police officer. On being asked whether his tests have the capacity to differentiate between termik that has been self-ingested or not, he answered that the tests that he conducted did not make any of those conclusions. The witness also stated that he is not familiar with the drug Vecuronium Bromide. Further, the witness testified that he was not the one who issued the laboratory report, nor signed for it. The last witness called by the State was Detective Sub/Inspector Blessings Chimaliro, a Police Officer with the Criminal Investigation Department, and was the lead investigator in this case. The witness testified that he received a report from the parents of the deceased that their daughter had been bitten by the snake and died as a result at Kamuzu Central Hospital. He further told the Court that the full postmortem was conducted by Dr. Dzamalala and confirmed in his report that the deceased died of poisoning with termik. The witness further told the Court that the results of the autopsy are what led to the arrest of the four Appellants as they were with the deceased the whole day before her demise. However, when asked in cross examination, he recanted his testimony and stated that it was not true that the Appellants were with the deceased throughout the day as some met her just before the incident of the snake bite. It was his further testimony, during cross examination, that he did not receive the original complaint, going back on his original statement. He confirmed in cross examination that he personally interviewed the mother of the deceased who confirmed that her daughter had called her on the material day to tell her that she had been bitten by a snake and that she was at Care Poly Clinic awaiting treatment. It is in evidence that when asked about the totality of information in front of him why he went on to charge the four with murder, he stated that if it was up to him he would not have recommended the case for prosecution. The above was the evidence before the Court below. As observed earlier, this Court is aware that the appeal to this Court is by way of rehearing. Thus, in answering the question that arises for determination in this appeal, this Court will consider the whole of the above evidence which was given in the court below as it determines whether the Appellant raised a prima facie case against the Respondents. What then are this Court’s finding amd conclusions from the evidence? ANALYSIS OF THE ISSUES RAISED BY THE STATE 3] Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Burden of Proof It is well to note that the State in its appeal before this Court is of the view that the Court a quo erred by stating that even at the stage of case to answer, suspicious, however strong, cannot make the Court find an accused with a case to answer. As we understand it, the Appellant is making reference to what the Court observed on paragraph 50 of the trial court’s finding, where it said: “Even on the basis of circumstantial evidence, on the available evidence, the fact that the deceased had been with accused persons away from Khala Restaurant from about 22;00 to the time she dies, cannot lead to the conclusion that the accused persons and no one else purposely gave her Termik. There could be suspicions against the accused persons with regard to the death of the deceased, but as submitted by counsel for the 4th accused, a suspicion however strong cannot be used for a conviction. Mtama v. Rep, 10 MLR, 15. I would add, even for purposes of finding a case against an accused person sufficient to require him to defend, not a suspicion. “(Emphasis in bold and underlining supplied). The State argues that by holding thus, the Court a quo used a test stricter than that used in the Gwanzantini case. Accordingly, the State would want this Court to believe that mere suspicion without evidence should be enough to call upon accused persons to defend themselves. The State’s position lacks legal basis in as far as there is no evidence pointing to an accused person. This Court will not impute guilt based on suspicions. We note that one thing that is running through the arguments of the State in the appeal is that they are of the view that lies are probative of guilt. The State would want this Court to believe that the Respondents at one time or another lied and that that should be constructed against them. It should must be pointed out that the Respondents did not testify before the trial court. Further, there is nowhere in the judgment of the Court a quo where it states or finds that the Respondents lied concerning the circumstances of the death of the deceased. This Court finds and concludes that the question of the Respondent’s lying does not arise. As we shall show below, the Court below was right in holding that an essential element of the offence of murder had not been proved by the State. Hence the acquittal. Whether the State proved the elements of the office of murder. me BY me Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA The answer to the question whether or not the State proved the elements of the office of murder will be guided by on the test set out in Namonde v Rep!® where it was instructively put that “subject to any exception at common law, cases of insanity and to various statutory provisions, the prosecution bears the burden of proof on every issue in a criminal case.” Cause of death It is the State’s contention that the deceased was not bitten by a snake. The State is challenging the finding of fact by the Court a quo. The contention therefore runs afoul of section 11 (3) of the Supreme Court of Appeal Act. The said Section 11(3) provides that: “The Director of Public Prosecutions may appeal to the Court against any judgment, including a finding of acquittal, of the High Court, if, and only if, he is dissatisfied with such judgment upon a point of law. Subject as aforesaid, no appeal shall lie against a finding of acquittal made by the High Court.” This Court observed earlier that the above provision means that the Director of Public Prosecutions has the right to challenge, or appeal, any decision made by the High Court, including a verdict of acquittal (when the defendant is found not guilty). But, this appeal can only be made if the Director of Public Prosecutions is dissatisfied with the judgment based on a legal point. In other words, the Director of Public Prosecutions can only appeal if he/ she believes there was an error in the application or interpretation of the law. Thus, the State cannot be heard challenging the finding by the Court below that the deceased was bitten by a snake as it is a matter of fact and not law as envisaged in section 11 (3) of the Supreme Court of Appeal Act. Nevertheless, we find as a fact that the totality of the evidence of from a number of witnesses!® was that the deceased was bitten by a snake, went to hospital and was administered with what was in fact a wrong drug and died while receiving treatment. Dr. Ruth Chimutu actually confirmed having talked to the deceased who was in a very stable condition before she started receiving treatment. This version of events is also corroborated by the testimony of Detective Sub-Inspector Blessings Chimaliro who stated that he talked to the mother of the deceased who 18 [1993] 16(2) MLR 657 19 See the testimony of PW 3 Elasimo Lucio, PW 4 Rafick Mustapher, and PW 6 Catherine Mwale , PW 7 Dr. Ruth Chimutu and PW 9 Lt. Dr Gladys Ngondo 9 Republic v Mtilosanje_ Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA told him that the deceased had been bitten by a snake and was at a hospital awaiting treatment. It is also worth noting that there were actually two versions of the cause of death from the state witnesses. There was one version that mentioned snake poisoning and another one that talked about administration of a wrong drug, vecuronium bromide which turns out to have been expired by then as well. These two versions were put by the State as possible causes of the death. There is yet another version of the cause of death. Dr, Charles Dzamalala, Professor N. G. Liomba, and Fallison Kaponda stated before the Court that the deceased died as a result of Termik poisoning. Thus, this brings in a third alleged cause of death. Wth all these three possible causes of death the State failed to establish beyond reasonable doubt what really caused the death of the deceased and therefore it failed to prove an essential element of murder. It is so found and concluded. Nexus between cause of death and actions of the 1% Respondent or of the Respondents . This Court observes that the State, in its arguments, seems to appeal against the trial court’s finding that there was no evidence to suggest that the 1 Respondent or any of the Respondents had caused the death of the deceased. We have read the record thoroughly. There is nowhere in the evidence offered by the State to suggest that the 1** Respondent or any of the Respondents did any act that might have accused the death of the deceased. Throughout the prosecution’s evidence the only suggestion was that the deceased took wine at Khala, which was her work place. The said wine was definitely not served by the 1°* Respondent or any of the Respondents. Therefore, the prosecution failed to show any nexus between the cause of death and any action of the 1% Respondent or any of the Respondents that might have caused the same. The prosecution has therefore failed to prove the actus reus of the offence of murder. This Court further notes that the State would like to use the doctrine of last seen to tie the Respondents to the “crime” (the death of the deceased). As it were, the state has introduced the doctrine of last seen to argue that the respondents were the last people to be seen with the deceased before her passing. The doctrine of last is based on circumstantial evidence. However, there are three basic requirements that need to be satisfied for application of the doctrine- a. Time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found, should be minimal; so Bd oe Republic v Mtilosanje Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA b. Every link in the chain of circumstances necessary to establish the guilt must be proved beyond reasonable doubt; and c. All the circumstances must be consistent unequivocally pointing towards the guilt of the accused. Thus, the circumstantial evidence as well as the chain connecting those evidences ought to lead to an inescapable conclusion that the crime was committed by the accused and none else. As it were, such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Does the doctrine of last seen apply to the facts of this case? Are the facts of his case compatible with the innocence of the Respondents ? Are the facts capable of explanation upon any other reasonable hypothesis than the guilt of the Respondents? As we understand it, the doctrine of last seen means that the law presumes that the person who was last seen with a deceased individual bears full responsibility for the death. This doctrine of last seen stands as a negation or an exception to the doctrine of “presumption of innocence” as it is the law that where the victim was last seen with the accused person and has not been found after a period, the death of the lost person will be presumed, it will also be presumed the person that he was last seen together with is responsible for his disappearance or death. However, the last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen, and where the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. We find that the doctrine does not apply in the circumstances of this case as the deceased availed herself before the clinic with the Respondents whilst arrive and well. Further, the facts are capable of explanation upon other reasonable hypothesis than the guilt of the Respondents. It is well to remember that that the testimony of the state showed that there were three plausible causes of death of the deceased, namely, death caused by Venom, termik and Negligence at Clinic by administration of wrong drugs. As such the Appellant could not rely on circumstantial evidence of last seen to secure conviction against the Respondents. Thus, such inconsistencies in the cause of death of death of deceased ought to be resolved in favour the Respondents. Therefore, the doctrine of last seen cannot apply. ~35~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Malice aforethoughtMalice aforethought is an important element that must be proved if an accused is to be found guilty of the offence of murder. Now, having brought three different versions on the cause of death and having failed to show which act/s or omission of the 1* Respondent or any of the Respondents might have caused the death in question, it would be academic to start talking about malice aforethought. Even for academic purposes the State’s case was very clear through Detective Sub/Inspector Blessings Chimaliro that there was no suggestion whatsoever that any of the accused persons had reasons to kill the deceased. This Court notes that the State brought circumstantial evidence to prove malice aforethought. It is the state’s argument that the Respondents took the deceased to the clinic and ‘lied’ that she had been bitten by a snake. However, nothing to that effect was adduced in the trial court. Inspector Chirambo, the investigator, gave evidence that he interviewed the mother of the deceased who stated and swore a statement that her daughter (the deceased) called her while at the hospital and informed her that she had been bitten by a snake but that she was fine and about to receive treatment. The argument by the State is therefore unfounded. Further, it is well to put it here that Dr. Charles Dzamalala put it in evidence that the deceased died due to termik poisoning. His evidence is however contradicting with the evidence of Fallison Kaponda (PW 12) and Detective Sub-Inspector Blessings Chimaliro (PW 13) who both confirmed that Dr. Charles Dzamalala flouted procedure by personally taking specimen to the laboratory for analysis without being accompanied by the Police. According to Fallison Kaponda, the Police are involved at this stage so that the whole process is not affected by any suspected fraud or specimen tampering with the samples. It is not known therefore whether or not Dr. Charles Dzamalala put (PW 10) tampered with the samples before handing them over to the laboratory for testing. In case of doubt the Court resolves that doubt in favour of the Respondnets and Dr. Charles Dzamalala’s evidence therefore lacks credibility. Further, it is clear from the evidence that the post-mortem examination was done in disregard to the set standards and procedure, in the absence of police officers and independent doctors. In Kagwa v Rep”? it was instructively put that where prosecution witnesses gave contrary evidence on a particular issue, any doubt raised by such contradiction should be resolved in favour of the accused. Further, as was stated in Abdul Hassan v Rep.”" , a Court cannot presuppose evidence to establish an offence against the accused. Therefore, in the absence of 2014 MLR 138 21 Criminal Appeal No. 40 of 1989 ~ 36 ~ Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA the relevant evidence to support Dr. Dzamalala’s testimony, his evidence lacked credence and did not establish any office against the respondents. In sum, the evidence offered by the Appellant showed the following: that the deceased was itten by a snake; that the deceased was indeed attended to at the Care Poly Clinic on a diagnosis of a snake bite; that the deceased was administered with a wrong drug, vecuronium bromide; that there was a prima facie case that the cause of death of the deceased was either snake venom or vecuronium bromide; that the termik theory was not credible and left a lot to be desired; it did not satisfy any of the elements for the offence of murder against the Respondents; the arrest of the Respondents was merely persecution for the fact that they were close to the deceased. DETERMINATION By reason of the observations above, this Court finds and concludes that the State has failed to prove its grounds of appeal and this Court would dismiss the State’s appeal. Further, it will uphold the trial court’s finding at the closure of the State’s case that the Respondents had no case to answer. We further find and conclude that the Court a quo: did not misapply the law to the facts ; properly considered the law regarding evidential and legal burden during criminal trial; properly directed itself regarding circumstantial evidence ; properly directed itself regarding evidence of an expert witness and the evidence of an investigator ; properly directed itself regarding evidence and law in respect of whether or not there was a case to answer. Therefore, the Appellant’s appeal be and is hereby dismissed. Pronounced and delivered in Open Court at the Supreme Court of Appeal, sitting in Lilongwe this 28" day of July 2021 Republic v Mtilosanje_Judgment MSCA Crim Appeal Number 10 of 2020_ Justice F. E. Kapanda SC, JA Hon. Justice FE. Kapanda SC, JA \ : 4 COCO OC COC OETOCO COOLED OCC LOO EDO OET OOO OOOO ETOT OOOO OOO OOO ECOL OO OOO OED EDEOEDEDOESOOLES0R \ ee Hon. Justice H. S. B. Potani JA Hon.! Justice J. Katsala JA Hon. Justice M. C. C. Mkandawire JA ~ 38 ~