Wilfred Kashiba v The People (Application No. 78 of 1971) [1971] ZMCA 11 (14 December 1971)

WILFRED KASHIBA v THE PEOPLE (1971) ZR 95 (CA) COURT OF APPEAL BARON JP, GARDNER AND HUGHES JJA 14th DECEMBER 1971 (Application 20 No. 78 of 1971) Flynote Criminal law and procedure - Appeal - Application for leave to appeal - When to be refused. Evidence - Incriminatory statement - Duty of court in admitting. Headnote The applicant was convicted of store-breaking. The evidence of the 25 arresting officer contained an allegedly free and voluntary statement of the accused but the magistrate did not inform the accused of his rights before the statement was admitted. The applicant applied to the Court of Appeal for leave to appeal. Held: 30 (i) It is the duty of the trial court in all cases, even if the question is not raised by the defence, to satisfy itself as to the admissibility of an incriminating statement. The court must satisfy itself, before evidence as to the content of the statement, that it was freely and voluntarily made, and where an accused is 35 unrepresented, the court must take particular care that the accused is made fully aware of his rights and, if necessary, to test the evidence on this issue. (ii) Whether or not an accused is represented, the record should state whether the allegedly free and voluntary character of a 40 statement was challenged, the subsequent proceedings on the issue and the ruling of the court. These steps are not mere formalities; failure to take them is a serious irregularity which BARON JP will lead to the setting aside of the conviction unless the appellate court is satisfied that, on the remainder of the evidence, the trial court must inevitably have come to the same conclusion. 1971 ZR p96 Applicant 5in person. E J Chisengalumbwe, State Advocate, for the respondent. Judgment Baron JP: delivered the judgment of the court: This is an application for leave to appeal against conviction and sentence. The applicant was convicted of storebreaking, the property stolen being four 10 suitcases, thirty - six sweaters and seven jerseys. The applicant was seen throwing these articles from the roof of the store, and was apprehended immediately. The applicant gave evidence on oath and said that he was simply nearby when he heard shouts of "thief", went to the scene and was arrested. The identification of both the applicant and the property 15 was satisfactory and the magistrate was fully justified in rejecting the applicant s evidence. There is, however, a serious irregularity on the record. The evidence of the arrested officer contains the following passage: "I arrested the accused on the charge of storebreaking, warned 20 and cautioned him in Bemba, he understood Bemba, made a reply which was free and voluntary, he denied the charge and said that 'I deny the charge, I am not the one who broke; the shop was broke by a friend who works in Amin. I entered the 25 shop through the hole and took the property. I do not know the name of my friend."' Although the record is not a verbatim transcript of the proceedings there is nothing even to suggest that the magistrate, when the point was reached that the witness was about to depose to an allegedly free and voluntary statement, informed the accused of his rights in this regard, 30 or asked him if he agreed that the reply was free and voluntary. It is the duty of the trial court in all cases, and even if the question is not raised by the defence, to satisfy itself as to the admissibility of an incriminating statement. The court must therefore satisfy itself, before evidence as to the content of the statement is led, that it was freely and voluntarily 35 made, and where an accused is unrepresented the court must take particular care that the accused is made fully aware of his rights and to test the evidence on this issue. Whether or not an accused is represented the record should state whether the allegedly free and voluntary character of a statement was challenged, the subsequent proceedings on the issue, and 40 the ruling of the court. It is true that the witness described the applicant's statement as a denial, and that the applicant himself began his reply by saying, "I deny the charge." But the applicant's statement was not a denial; it was an admission of some very relevant and prejudicial facts, and this serves 45 to underline the danger of failure to take the steps set out above, 1971 ZR p97 BARON JP We must impress on all magistrates that these steps are not mere formalities; failure to take them is a serious irregularity which will lead to the setting aside of the conviction unless the appellate court is satisfied that on the remainder of the evidence the trial court must inevitably have come to the same conclusion. 5 In the present case it is clear that the magistrate did not rely on anything contained in the applicant's statement; indeed, he appears to have regarded it as a denial, and we are quite satisfied that he was not influenced by anything the applicant was alleged to have said. The remainder of the evidence was overwhelming. 10 On the question of sentence, the applicant has a very long record, most of his convictions being for offences involving dishonesty. There are no mitigating factors, and the applicant is not entitled to any leniency. In these circumstances the sentence of three years' imprisonment with hard labour cannot be said to be excessive. There are no reasonable 15 prospects of success on appeal, and the application for leave to appeal must be refused. Application refused