Paul v R (Criminal Appeal 16 of 2017) [2017] MWHC 87 (7 June 2017)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL APPEAL NO. 16 OF 2017 YAMIKANI PAUL V THE REPUBLIC Hon. Justice M L Kamwambe Maele of counsel for the Appellant Dr. Priminta & Ms Francisco of counsel for the State Amos ..... Official Interpreter KamwambeJ JUDGMENT This is an Appeal against the decision of the lower court at least is aged 19 years to Section of all, let me give the back grounds the Appellant and 10 months. He was charged with the offence of Defilement contrary charge were that in the month of January 2017, at Hau in the District Mwanza the Appellant of Memory Banda, a girl under the age of 16. In fact the girl was 15 years old, and they were all attending 138 of the Penal Code. the same school, carnal knowledge the girl in Form 2 and had unlawful The particul ars of the CRIMINAL DIVISION 'I : r f; I(.' · .. __ ._ c,1-1 cour-;·r J _, Hf{ J.\R y -···----._J the boy in Form 3. They were in a relationship and it was apparently, ordinary that they should engaged in sexual experience. The and he was convicted on his own plea of Appellant pleaded guilty This was the plea by the and sentenced guilty Appellant "I understand of Memory Banda. It is true that she was that I had carnal knowledge under the age of 16 years." Court entered a plea of not guilty. the reading of the charge, I admit it is true to 6 years imprisonment. The grounds of appeal are that: 1. The lower court erred in law in entering a plea of guilty without having regard to the mandatory Section 25 (2) of the Criminal Procedure & Evidence Code. provisions of the Proviso to 2. The lower court erred in law in not bringing the Statutory the Appellant Defence in Defilement cases. to the attention of I have considered both arguments of the State and the Appellant. The State is in agreement that plea was defected but first of all it is advisable that I bring out Section 251 of the Penal Code which provides that: 1. When an accused appears or is brought before a court, a charge of which he is accused shall the particulars of the offence to him and he shall be asked whether he containing be read and explained admits or denies the truth of the charge. 2. If the accused admits the truth of the charge his admission in the words used by him and he may as nearly as possible shall be recorded be convicted and sentenced thereon. - a plea of guilty is recorded, Provided that before ascertain intends consequences of his plea and him. the truth of the charge against the court shall the nature and ation qualific to admit without that the accused understands In the case of Michael lro v R [1966] 12 FLR 104 (Fiji) it was stated that: CRIMINAL DIVISION to exercise "in our view there is a duty cast on a trial the greatest unrepresented ensuring person should fully comprehend exactly involves." a plea of guilty is accepted, that before judge when the accused is with the object of vigilance what a plea of guilty the accused This court agrees with the above observations by the valance stated in the case of Mc Innis v R [1979] 143 CLR court. It was further 575 at p. 589 by Murphay J that the notion that an unrepresented accused can defend himself all but the rarest cases. Even an experienced regarded as foolish to represent lawyer would be if accused of a serious adequately goes against experience himself crime. in This is vyhat The proviso in always advising to section 251 (2) calls happens unfortunately. I wish to emphasize the fact that it is not enough for the trial of a guilty plea. Especially accused person. However, court to just pronounce to the accused the nature of the charge to which the accused is expected to plead guilty or pleads guilty. ordinarily of the guilty plea to be outlined to further to require the consequences the accused person. This is what hardly happens in most of our courts.· an accused person of I wish that courts are vigilant if we are dealing with the consequences an unrepresented requirements on ascertainment nature and consequences makes it mandatory is entered. A plea of guilty prove the case beyond reasonable guilty convicted and sentenced therefore, accept or record a p before a plea of guilty of the burden to doubt. And further a plea of means the case will end there and then and the accused to be It is not worthy that of whether the accused person understands of the plea. The word used is shall which of Section 251 must be complied with. there and then. An accused person must be aware of these consequences lea of guilty. the prosecution consequences, before a court can to explain relieves the in all circumstances the CRIMINAL DIVISION Another consequence sentence especially murder and rape. of a plea of guilty offences is the likelihood like robbery, of a long defilement, in serious In Thokoza Malenga v Republic, Criminal Review Case No. 19 of upon a plea of guilty Criminal Appeal were as the trial courts did not comply v Republic set aside the convictions 2015, in the case of Daniel Chikapenga No. 21 of 2015 {unreported) quashed and sentences with the proviso to section 251 of the Criminal Evidence Code and a retrial jurisdiction. Cosmos v Republic, quashed the did not have regard to the proviso Procedure and Evidence a retrial Code before entering convictions was ordered. Likewise Criminal for robbery on the grounds ordered before court of competent in the case of Isaac Sitole and Emmanuel of section 251 of the Criminal a plea of guilty, and Appeal No. 37 of 2016 (unreported), I court that the trial and Procedure I observe that in the case before us the trial Magistrate not comply with the mandatory 251 of Criminal of guilty. was defective. Procedure requirements of the proviso Code before entering and Evidence As such, I agree with both the State and Appellant court did to section a plea that plea Now I come to deal with the second ground of appeal which is the Statutory that the lower court erred in law in not bringing Appellant defilement namely that the offence is not committed reasonable expected that lay persons would easily know about this defence. Defence in Defilement is a unique offence in that it has a statutory where the accused has a to the attention of the cases. The offence of belief that the girl was above the age of 16. It is not defence Unrepresented accused persons, of this defence .. themselves therefore, cannot easily avail In the case of State v Baleki [1979-1980] B. L. R 35, it was held that is alleged to have been 147(5) of the Penal Code. he must be by section of the defence provided a defence in respect of persons charged in carnal knowledge of on a charge of rape, where the complainant under the age of 1 6 years, if the accused is undefended alerted This section provides Botswana with having unlawful age of 16. The section provides accused can show that he had reasonable believe that the victim had attained noted that the accused should be alerted apparently since having regard to the evidence he stood the risk of being convicted years. the accused with a defence if the and did cause to believe, the age of 1 6 years. The court if the victim was in fact below the age of 16 of defilement of the defence, a girl under the In the case from Botswana of Gare v The State [2001] 1 B,L,R 143, CA at p 148 which is a similar of 2: 1 that: majority case of defilement, it was held by a in the case did not have a fair trial where did not take any steps to appraise the to him defence available age statutory that the girl was above the for defilement that arises was quashed. is whether have drawn in the circumstances, of the special "the Appellant the trial Magistrate Appellant as to whether he believed of 16. The conviction Zestsman the magistrate the Appellant's subsection to do so means that the Appellant hearing should, attention JA stated that" the question at his trial. 147(5) of the Penal Code and whether his failure to the special defence set out in was not given a fair CRIMINAL DIVISION In the South African case of S.v. Andrews 1982 (2) S. A. 269 (N. C). It that where a statute of fairness if which needs to be rebutted to of his conviction was held that considerations raises a presumption undefended, inform his thereof can lead to the quashing prejudiced by the accused, and a failure of the presumption, should be informed by such failure require if he was . and in detail, of Botswana provides, In the present case the subsection offence in and must be informed, of the .. section 10 of the Constitution . . . . . inter alia, that a person charged with a criminal a fair hearing, must be afforded a language that he understands nature of the offence. in the Penal Code under which the Appellant provides accused. obvious ineptness probable ignorance and the meaning thereof him by the Magistrate. leads me to the conclusion Appellant in conducting of this special to should have been explained The fact that this was not done that it cannot be said that the that in view of the Appellant's his defence, and his defence, defence which can be raised by the was given a fair trial." the existence It is my opinion a special was charged And Lord Weir JA stated that: charge, carnal knowledge faced a serious of a female under the "In the present case, the Appellant that of unlawful age of 16 years. The Penal Code provided defence that if it appeared to the court that he had reasonable cause and did in fact believe the complainant acquitted. to believe was 16 years of over he would be At the start of the trial that him with the the charge was read over and he said that he understood defence was not. I do not go so far as to say that it. The to the Appellant special there was any requirement defence at the start statutory my own inclination, unrepresented do so." and illiterate to read out the terms of the of the proceedings although particularly in the case of an to accused, would have been In Allan Willard v Republic Criminal Appeal No. 33 of 2016 9unreported) I granted bail pending appeal and this is what I stated: suffice it to be to delve into the appeal, got such accused persons defence provision would useless were left unless if unrepresented into the dark as to its existence risking "Without say that the statutory rendered persons eventually The law would seem to be favouring This could go against able who are represented. constitutional provision a fair trial In view of this it appeals agairst primafacie success." of ensuring discrimination. that the appeal has a prospect incarcerated. the financially the and one accused and of It is apparent that the trial court did not explain the statutory defence to the accused person and following the cases cited above, no fair trial was heard. As such the accused person for this second ground of appeal, merits to have his conviction sentence set aside just like in ground of appeal. quashed and the first • The task that I have now is to determine for the accused. I may order a retrial he be acquitted, but I ought to give reasons the appropriate to take place or I may order that for doing so. I may also remedy CRIMINAL DIVISION of 6 years imprisonment. The Appellant's of defilement . of v R Criminal For instance has spiritedly e she was young to collect medication between the perpetrator argued that in this relationship which required her to be frequenting of the offence in Chimwemwe Chimbanga reduce the sentence of the Appellant counsel and the girl there was no abuse, because they were in a relationship l do agree that indeed we have not received any evidence abuse. The girl did not testify that she was forced to have sex with him. This is a unique case. Most cases we dealt with there is a power imbalance and the victim. Appeal No. 3 of 2011 the girl child used to go to the Health Centre at Chilomoni sinc body. She had a condition Health Centre to collect Appellant and that he would beat her up. He commanded her to meet him at some specified houses for sex. She was indeed a true victim. relationship to continue but she was forced into it as she lived in fear of him. A sentence ·of so much imprisonment was imposed on it is where a man of between 18 appeal. In other cases of defilement and 65 years of age is defiling a girl under the age of 12. Some of the in the case of Rep v defiled Victor Molesi Confirmation Case No. 373 of 2017 the convict who was a stepfather defiled stepfather mind deeply. used to threaten her if she dared to break the relationship places to pick her up to go to some lodges or rest a 6 year old girl child. You can easily see that the medication from the Appellant. the girl child. This distinction of age. For instance She did not like the for her ailing was abusing are 3 years has exercised my children the The The law is that punishment the accused while paying attention to public drawn to think very seriously the circumstances. This is a unique situation, not subtract from the fact that the purpose were. However, this section 138 is to protect the girl child because in case the 15 year must fit the accused, and be fair to I have been in a special situation as it of as to what would be a fair sentence interest. it does of the girl. not be abused. te times. I feel this is time that He was not a sugar I am prompted to girl even if she consented to sex she was unequal partner to unlawful act, the man would still be heard liable. He knew she was 15 no doubt about it but the element of absence of abuse must be specially treated. He was not taking advantage dad as it could be, this was an innocent affair. which employ section 337 of the Penal Code. This is a situation demands the use of this section, as it is said in the Shauti case must be blended with mercy, mercy must punishment at appropria It must be used reasonably we can use it. I have considered Criminal Case No. 3 of 2015 (unreported) who upheld a sentence of 4 years IHL on conviction for defilement where the Appellant time of the commission aged 15. There was a reason why 4 years was imposed. as the boy child has also to be considered He is a child by virtue old. This are special be given another chance to proceed with school. befitting to employ section the accused absolutely. a first offender getting in conta He should be able to go back to school. He is young. We should save him from ned priso'ners. It is so the case of Felix Joseph v Republic Nyirenda and he was aged 22 at the The victim in this case was was a first offender of the offence. and really useful, ct with harde of being at school in Form 3. He-was only 17 years 337 ( 1) (b) of the Penal Code. I discharge ance to take into account. He deserve to for protection by the law. by Justice Kenyatta The Appellant decided. I repeat, it is circumst Pronounced in Open C ourt this 7 th day of June, 2017 a t Chichiri, Blantyre. ML Kamwambe JUDGE