Msonda v R (Criminal Appeal 3 of 2017) [2018] MWHC 1321 (11 April 2018)

/ Vyanangi/1.a ,Visoncfa v Ths f~epu/Jfic Crirnina! AppGaf 1\Jo ? of 2017 tt!izJ-fC , , . ._~ - ·~ . ._ .. ,\..._n~ ••.. I: n f .t--4 \(..)d COURT t l LIBRARY I l ••4+\'UCURrq: =-«:J - .~,.,,,.../ REPUBLIC OF MALAWI IN THE H!GH COURT OF MALAWI MZUZU REGISTRY: CRIMINAL DIV!SiON CRIMINAL APPEAL NO. 03 of 2017 (Being criminal case No. 166 of 2016 in the First Grade Magistrate Court Sitting at U!iwa) Vyanangika Msonda .. v- The Republic CORAM : HONOURABLE JUSTICE D. A. DEGABFUELE Mr. VV. Nkosi · Mr. C. Duke Mrs. L. fviuntha!iiC3. fv1sukwa Mrs. J. Chirwa Counse l for the State Counsel for the Appeiiant Official Interpreter Court Reporte r DeGaiJriele, J introduction JUDGEMENT ON APPEAL · - - -.. --- ·- -···-·--------·-··-- - -- - - - - - - - - - -- --·---·-·- The Appeilant was arrested, charged, tried and convicted of the offence of arson contrary to section 337 of the Penai Code. He was sentenced to 48 months imprisonment Viith hard labour. he has appealed against both conviction and sentence. He h2d initiany appHed for baH pending apr::eal. This c:ourt denied granting bail and directed that the appeal hearing be expedited . l-here are 3 iJrounds of appeal fiied as fcdiovvs; 2. ~f-he !eartisd subordinate court erred in lav.l and ln fact in convicting the /\pps!ient er ;_rsc);1 \\/hen H1e evidence did not support such a finding - Vyanangika tv1soncla v The Republic Crinu'r1af Appeal tJo 3 of 2017 A1zf-fC b. The conviction v1as aga inst the weight of the evidence c. In the a!ternative, the sentence of 48 months was excessive in the circumstances regard being had to the mitigating factors that he was a first offender and is of iii-health Appeals in the High Court The principles guiding this Court in exercise of its power on appeal were laid down by the Supreme Court of Appea l in Pryce v. Republic, [1971-76) 6 ALR (Mai) 6: "in our opinion the proper approach by the High court to an appeal on fact from a magistrate's court is for the court to review the record of the evidence, to weigh conflicting evidence and to draw its own inferences. The court, . . . must then make up its own mind, not disregarding it; and not shrinking from overruling it, if on full consideration, the court comes to the conclusion that the judgment is wrong.'' The lav; it is established lav1 that the burden of proof in criminal cases rests on the prosecution. Lord Sankey in Vifoolmington v Director of Public Prosecution [1935] AC 4$2 put the point in the foiiowing terms: "But 1. Nhife the prosecution must prove the guilt of the prisoner, there is no such !Jurden laid down on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilty; he is not bound to satisfy the jury of his innocence . . . Throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilty'' Burden of proof and standard of proof are very much interrelated . The standard of proof in crirnina! cases is proof beyond reasonable doubt, as outlined in the case of Rep v Banda [1968~7'0] ALR Mai. 96 that. "That degree is vvel! settled. It nsed not reach certainly, but it must cany a .high degree of /Jossibi!ity. Proof lJeJlO!id reasonable dou/Jt does not rnean fJrc;of be .. vonrJ the sha·dovv of a doubt. 7-he !avi v·.lou!d fail to /Jrotect the cornrnunit_v if it ac£rr'fitteci fanc _ifLJf fJOssfbiiihf~s ft) deflect the cause of justice. If the ;:;viclence is so strong E:gah1st a rnan as to leave on/}1 a - Vyanangika Msonda v The ,C?.epufJ!ic Criminal Appeal No 3 of 2017 MzHC remote possibility in his favour which can be dismissed vvith the sentence "of course it is possible, but not in the least probable'' the case is proved beyond reasonable doubt, but nothing short of that will suffice." The relevant provision is section 187(1) of the Criminal Procedure and Evidence Code . "The burden of proving any particular fact lies on the person who wishes the court or jury as the case may be to believe in its existence, unless it is provided by any written law that th e proof of such fact shall lie on any particular person. Provided that subject to any express provision to the contrary in any written Jaw the burden of proving that a person is guilty of an offence lies upon the prosecution" The Jl..ppeliant herein was convicted under Section 337 of the Penal Code which outlines the offence of arson and provides as follows ; ''Any person who wilfully and unlawfully sets fire to- (a) any building or structure whatever, whether completed or not; or (b) any vessel, whether completed or not; or (c) any stack or cultivated vegetable produce, or of mineral or vegetable fuel: or (d) a mine, or the v,;orkings, fittings, or appliances of a mine, shall be guilty of a felony and shall be liable to imprisonment for life.'' The Evidence PW1 stated that on returning from visiting some family members, his wife and 2 colleagues sav.; that their grass thatched house as well as the one that was partially grass thatched and roofed vvith iron sheets were on fire and most of his properties were burnt. In cross examination he stated that he did not see the Apoeliant burnino ...., ' the house but his wife and her co!ieagues sav1 hlm and they had shouted at him. PVV2 stated that she knsv: the /\ppe!!ant who was a neighbour and had set the house of fire. She sa··./'l th e accused carry·ing a pie ce of glovling fi revvood frorn the rea r of the house to the front and he vva s accon1p2 nied by his son . -She said it Vv'as a moonlit night and - the /;ppe!!ant vi-1as ;3t a distance of 3 rn etre s. Further, the fi :·e!ight iHurninated the a rea. " II . h 1~\ , I e rour V/orn en si tOUtt~o lor ne p as d""1ey a: ! sav; lne AppeHant vvi:n H:e g1ovv1ng I ' · ; • f ' i.. ! , • . r . " " , , ' ' , , :, . J Vyanangika Msoncla v Tile Republic Criminal Appeal No 3 of 2017 MzHC firewood. In cross examination she stated that the Appellan t was wearing black shorts with no shirt PW3 and PW4 were both below the age of 13 Brenda and passed the voir dire test and gave unsworn testimony. Their evidence was similar to that of PW2. In cross examination she stated that they shouted for help at about 7pm PW5 stated th at on 15th August 20 16 they had gotten a judgement from court and visited some relatives. On arriving home, they found the houses were on fire. In cross examination she stated that she did not see him physically burning the house. The Appellant gave evidence in defence and called witnesses to support his case. DW1 was the Appellant vvho told the court that on 15th August 2016 they returned from court. He said that at night he saw lighting in his room but continued to sleep. Only when he heard shouting did he check what vvas happening . He saw houses on fire and \vent to the scene. He was to!d by people to leave the place since he was wanting to revenge. !n cross examination he stated that he visited the scene just like everyone else. He denied to have set the houses on fire. He said that the witnesses sa'N him but they may have been rnistaken in identifying hirn. He also stated that the witnesses would not have mis-identified him in the circumstances since he was very well known to them as a neighbour. DW2 was the wife of the Appellant who stated that her husband went to the scene of fire just like other people. She stated that her husband was suspected because there were disputes already. She also said- she had heard people say that they would make sure that he was convicted. She did not go to the scene of the fire herself. DV\/3 told the court that he had heard the wife of the victim and the children of the victim say that they 1,vou!d make sure that the Appe!iant vvould be convicted and they vvou!d use the evidence in court that a chi!d had been denied. !n cross examination she stated that she !ived near the victim and the ,l\ppe!lant. The witness said that the fa,ppeliant may h2ve forgotten him as a v:itness . The witness aiso stated that she did not see the accused at the scene. DW4 to!d the court that he rushed to the scene where houses were on fire to try and rescue the hou ses. He tolc! the court that the :D..ppe!!ant th~'.n came and 2sked \\:'hat had happened. in cross exan1ln2tion he stated that a numbe,~ of peopis v._;ere at the - Vyanangii<a !Visonda v Tile Repub!tc Criminal Appeai No 3 of 2017 MzHC scene but the accused came after him. He also to!d the court that he had told the Appei!ant to !eave as th e victim was aileging that the Appellant had caused the fire. I now proceed to discuss the grounds of appeal. The fi rst and second grounds of appeal wi!i be discussed together. a. The learned subordinate court erred in fa11,1 and in fact in c onvicting the Appellant of arson when the evidence did not support such a finding b. The conviction was against the weight of the evidence In his submissions the Appellant states that the Appellants allege that the lower court erred in convicting the 2nd Appe!!ant without giving the Turn bull warning since the case depended on visual identification evidence . The Appellant argues that the \Vitnesses would have mistakenly identified him since this was at night regardless of the moonlight, and th at there were a number of people present. The law of identification has been outlined in the case of R v Turnbull (1977) Q. B.224 where the court stated that; "First, whenever the case against an accused depends vvho/fy or substantJ"a/!y on the correctness of one or more identifications of the accused 'IVhich the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for th e need for such warning and should make some reference to the possibility th at a rnista!-<en witness can be a convincing one. "Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. Hovi long did the vvhness have the accused under obsentation? At vvhat distance? Jn what light? llv'as the observation impeded in any vvay, as, for exarnp!e.1 /Jy passing traffic ore fJress of jJBOJJ!e ? h'ad the vvitf1ess: ever seen the accusecj /Jefore? /-Iovv' oftet1? If only occasionally, had h e ar;y s11ecia! reason for remernbering the accused? How long elapsed betvveen the original o!-1servation anci the suhsequer1t ide11tificatior1 at the police? VVas there an:i rnaterial L-fjscr;. Jpanc·y· betvveen the: descri,rJt;'on of the accLlsed giver: to the police /JJ.1 the vv1itr;-1::)ss t:vher1 f/rst seer, by thern and his actuc:1! B/J/Jeara11ce?·1 ; \/VhaF is required at la\:v is that the !ovver court shou!d \Varn itself on convicting based - Vyanangii<a Msoncia v Tile Republic Crirnina! Appeal No 3 of 2017 tvizl-/C on the evidence of identification only, as such identification can be mistaken . The question here is whether th e conviction was based on identification only . The respon se is in the negative as there is other circumstantial evidence that supported the conviction, which I 1,-vi!! discuss later. On identification, it is not disputed that there was moonlight and there was a blazing fire which lit the whole area. The witnesses clearly stated that they saw the Appellant with a glowing piece of firewood and then he ran away. VVhen an alarm was raised people then came to help douse the fire and the Appe llant himself came again and he was clearly identified as the person who had earlier on set the hou ses on fire. The A.ppellant himself confirmed in his evidence that the witnesses knew him as a neighbor and would not have mistaken his identity in the circumstances . I agree with the State's submission that the absence of the Turnbull warning did not occasion any injustice to the fa.ppellant as the conviction was not wholly dependent on the identification. This court finds that there was no issue on the identification itself. The incident occurred at night but under the i!lumination of the moon, the area was illuminated by the blazing flames, the ,A,ppellant was ver; well known as a neighbour vvho iived less than 1 OOm of the victim, the parties had an ongoing dispute at the magistrate cou rt and the Appellant was less than 3 metres of the witnesses who saw him with a g!O\v ing piece of firewood . The evidence. as the lower court heid, shmved that the /\ppeliant was at the scene of the fire, first to light the fire and later as a concern ed person purportediy trying to help and find the cause of the fire . This Court ha s to determine if there·· was any evidence to cast doubt on th e fa ct that the J\ppeliant caused the fire. In his submissions the Appellant has al leged that since no one saw him actually torching the houses, the evidence against him was circumst2ntial and was not enougr: to enter a co nviction against hiff1. Circumstantial evidence is described as evidence that :eaves no break in the ch ain of events on which an intsri'erence of guHt is di-2vm . In the case of Nyamizinga v Republic [1 971 - 72] 6 ALR 253 it was held by Chatsika J, as he 1,vas then , that •ttltlhere the evide11ce is circt1rnstantfa! the acce/Jted and logical B/Jf:-roacl1 is bJ' \:Fay of e!in1i11ation 1 that is b_y 11e_gatir1g aj/ /JossilJie .hj1fJOtl?eses of inr7ocer1ce . jn order to justi(v frorn circun1star1tit:1! evidence an inf(:;rence or guilt the racls rnust be iljCOnt/Jatibje \l'/fth the innocence of the accused ancf .incaJJa/J!e of - • Vyanangil<a Msoncia v Th e Republic Criminal Appeal No 3 of 2017 MzHC explanation upon any other reasonable hypothesis th an that of his guilt, The burden of proving facts to the exclusion of any re asonable hypoth esis of innocence is always on the prosecution and never shifts to the accused. ,. It is true that nobody saw the actual setting on fire of the house by the Appellan t or otherwise. The prosecution evidence discloses that the Appei!ant was seen with a glowing piece of firewood coming from the rear of the house going to the front and in the company of his son. When he was shouted at he ran away. The evidence of the defence is a!so to the effect that after the judgement at the magistrate court which was pronounced in favour of the victim, the Appellant arrived home before anyone else . He conceded that the fire was around 7pm and he had arrived home around or just before 7 pm . His story that he was asleep by the time the fire was blazing, which time has been establishes as 7 pm is not plausible . The evidence herein is direct evidence where he was seen and clearly identified . The evidence is then supported by circumstantial evidence in that the conduct of the Appellant and his evidence was inconsistent \Nith his claims of innocence; see f\Jyamizfnga v Rep (supra) . The facts herein are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than th at of his guiit. This arises from the fact that the pa rties as neigbours vvere embroi!ed in a case at the magistrate court, the victim emerged a winner and the Appeilant lost . ! I the case and it was therefore p!ausible that he had intended to revenae . The claims v ' by the defence witnesses that they had heard that he 1,-vili be implicated because of the court case really do not ho!d any vvate r. First such statements are hearsay and a re not admissible. There was nothing in this matter that barred the Appellant to bring frnih those persons as witnesses. Especial!y as he had wanted the lower court to use those staternents as proof of a contrived case against him . This court fi nds, as did th e lower court, that such statements \Ve re designed to detract from th e truth. This Court notes that the ft,ppellant v:as the neighbour of the victim. By his own e\.ride ncc he noted a very bright g!ovv of Hght fron1 his bedroorn but decided to go back to s!eep . It was only vvhen he heard noises that he decided to come o ut and in spect. He \Vas then at the seene of fi re after sorne people had alre ady been there . -rhi s court 2!so notes that rnost people in this neig h!)ourhood, going by th e eviden ce of \Vitnesses on both side had not gon e to bed as it vvas onl~/ around 7pn1. -rhe evidence cf the /\pp21!2nt that he v..fas asleep v:ith his fan1 il::r s;:J deep as!eep tl"--iat he could go back to - Vyanangika Msonda v The r<epu/J/ic Criminal Appeal No 3 of 2017 MzHC sleep after noticing such a bright glow of light, does not ring true. It does not tally vvith his statement that he arrived home just before 7pm and found only children at horne and that when his wife came she went to sleep as she was ill. The wife of the fi..ppeliant did not mention this rnatter but simply stated she arrived home after her husband and he husband was home when the fire started . The Appellant conceded that the witnesses who stated that they had seen him at the scene of crime could not mistake his identity as he was vvell known by them as a neighbour. The evidence shows that when the Appellant returned to the scene of crime the witnesses were quick to point him out as the culprit. Th is cou rt has su rmised that the victim and the Appe!!ant had a case before the magistrate court, whose decision was in favour of the victim . It seems the Appellant herein rushed home and went to set the house on fire out of revenge . Having outlined the evidence above, I find that the lower court was right in entering a conviction fo r arson and the evidence was given the weight it deserves. The appea l against convictio n fai ls in 'its entirety. c. in the alternative, the sentence of 48 rnonths was excessh'G in the cfrcumstances regard being had to ihe mitigating factors that he was a first offender and is of ill-health Sentencing is done at the discretion of the sentencing court as long as the discretion is exercised judicially, and the sentencing court hands down a sentence in accordance to its jurisdiction . The High Court wi!I only interfere with a sentence if it is proved that the sentence was wrong in law and it was rn anifest!y excessive, see Rep v Makanji!a [1997] 2MLF?. 150 HC. Generally, the sentence that ought to be passed rnust fit the crime as excessive sentenced tend to violate the accused rights to fair treatment under the law. Indeed, rnaxirnum sentenced are said to be reserved for worst offenders, see ,Repubffc \t Chikakuda [1992] 2 MLR 288 HC, ·rhe n1itiga.ting factors in this case is that the offender is a first offender. The fact that the l\ppe!la nt was and is of i!! health was raised in the lower court and the lower court in turn did t2ke that aspect into consideration. This Court notes that on fiiing the 2pplicallon for baii pending 2ppea!i the 1\ppe!lant stated th at he is suffering frorn S\\'Oito.:1 ston1ac!·; 3nd scrc}tUtTi due· to lhJe;· failure . ~fhe rneclica! report states he is diagnosed vvith hernia, anciernio 2nd S\\lelHng and accun1ulation of fluids in the scrotun1 - Vyanangika Msonda v The Republic Criminal Appeal No 3 of 2017 MzHC sac. There is mention of liver failure . This Court abhors the tendency of applicants and their lawyers to exaggerate issues in a bid to gain sympathy of the court. Such bigotry efforts are wasted on this Court vvhen all the paperwork is available for this Court to see. read and reach its ovm conc!usion. The Appellant herein did mention his sickness at the lower court just before sentence and the lower court took the same into account as m itigation. He cannot be excused from the comrnission of the offence and the subsequent conviction only based on the fact that he is sick. From the look of things, he was sick vvith the same problem when he committed the offence and he should have thought about his health at that time. It is wrong for the Appellant to think that the world owes him a living due to his illness and he should automatically be treated with more lenience than he deserves. The State has outlined a number of aggravation factors which are there was complete ioss of 2 houses and property that have not been recovered , the offence was committed at night, the Appellant wilfully and unlawfuliy planned this offence, and it was an offence of revenge committed at night straight after losing a court case. The Appe!!ant showed no remorse. ln the eyes of th is Court, the main aggravating factor is the act of setting a dwelling house on fire. I concur w ith the holding in the case of Republic v Chitseko, (1997) Cont: Gas. No. 78, that, "The natures of the offence and the cjrcumstances in which it was committed are so critical a consideration, aithough this is the defendant 's first offence. Arson is a serious offence. It is punishable with life imprisonment. Arson under our iaw involves a conflagration to different properties. Setting a dwelling house must be regarded as one of the rnost serious instances of the crime. VVhile as the value of the dwelling house and the extent of the damage may weigh considerably, just setting a d\ve!!ing house on fire is in itself grave enough as to cs!i for longer end imrnediate imprisonment." The offence of arson is a very s<'.:,rious offence as reflected in ths fact that the !egislature set a maxirnurr, sentenci~ of life imprisonment. This Court is aiso aware that an~/ sentence passed by H1e courts n1ust fit both the offence and the offender and - (ttr1retJ)r Llnder section 34-0 of the C.r[n~;in2! Procedure and Evidence Code the !avJs provided that first (Jffenders n-iust be considered for non-custod iai ser,tences unless Vyanangika Msonda v The R epublic Criminal Appeal No 3 of 2017 Mz!-fC such sentences are not the appropriate way to deal with them. If the court opts for a non-custodial sentence the court must give reasons for the same. I agree with the conclusion of the lower court that the appropriate sentence here in was a custodial sentence. The /;.,ppeilant herein was sentenced to 48 months imprisonment with hard labour with effect from the date of arrest which was 15th August 20 16. The starting point for offences of arson is 3 years. Which can be adjusted upwards or downwards depending on the mitigating or aggravating factors especially bearing in mind that the maximum sentence is life imprisonment. Looking at the evidence before this Court, this Court had considered enhancing the sentence to 72 months imprisonment, but bearing in mind the ill-health of the Appellant, this Court has confirmed the sentence of 48 months as being appropriate in these circumstances . The Appel!ant 1Niil therefore serve 48 months imprisonment with hard labour with effect from the date of arrest which was 15th August 2016 The appeal against the sentence fails in its entirety. Made ln Chambers at MZUZU REGISTRY this 11th day of April 2018 JUDGE -