S v Harry (Criminal Appeal 5 of 2005) [2007] MWHC 41 (16 October 2007)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CRIM. APPEAL NO. 5 OF 2005 BETWEEN COSMAS HARRY …………………………………..……. APPELLANT -AND- THE REPULIC …………………………………………. RESPONDENT CORAM : HON. JUSTICE A. NYIRENDA : : : Kumange, Counsel for the Appellant Kalebe, Counsel for the State L. C. Munyenyembe, Court Interpreter JUDGMENT This is an appeal by Cosmas Harry who was convicted of armed robbery contrary to section 301 of the Penal Code by the First Grade Magistrate Court at Dedza. The appeal is against both his conviction and sentence. As to conviction the main thrust of the appeal is that in all there was insufficient evidence against the appellant. As for sentence it is submitted that it was manifestly excessive in all the circumstances of the case. The appellant was sentenced to twelve years imprisonment with hard labour. In submitting for the appellant Kumange of Counsel has raised two main issues. The first one is that there was an alibi which the Magistrate did not consider. The second point is that there was insufficient evidence of identification. I agree with Counsel for the appellant that an alibi is evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time, he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission, See section 11(8) Criminal Justice Act, 1967. While I agree with the statement of law I have had difficulties in linking it to any of the evidence that was before the lower court. There was no evidence to show that the appellant was at a different place other than where the offence was committed. The first witness for the prosecution, Rodwell Sautso, who was a co-accused told the court that he was not with the appellant at the time of committing the offence in question. This is the closest we get to an alibi. But this could not be an alibi as defined above. There was nothing in the testimony of this witness to establish where the appellant was. In any case I must say the testimony of this witness is very suspicious and showed a clear link between him and the appellant. The witness confirms that after the robbery the stolen items were taken to the house of the appellant. He does not explain why all the items were taken there if the appellant was not part of the scheme. It was further established that even the weapons that were used in carrying out the offence were found hidden at the appellant’s house. Apart from the testimony of PW1 there is no other evidence that attempts to raise an alibi on part of the appellant. As regards identification the evidence came from the complainants, Mr and Mrs Somaliland. Their testimony is simple to follow. During the night in question Mr. Somaliland came home late from his business. At 11.00 pm he was having his dinner and his wife was there with him when their house was broken into. According to Mrs. Somaliland after the robbers entered the house they tied up her husband and demanded money from them. The house was lit with a torch by the robbers. There was also a lit lamp in the house which the family was using. It might be important that I quote part of what Mrs. Somaliland said about the appellant in cross examination as follows: You are the one who tied him (the husband) and forced him to sit. Four people raided our house. I have and I did identify you because you were holding a big torch and there was light. It is you and I identify your face. I really said I would remember your face even if it takes time I will identify him. The brown person ordered me to take my child from the bedroom. You were with my husband and at the end you took a battery. The one with Chikandira was the one shooting. I knew him because he is from home. And later in re-examination she said: Accused person was among the robbers who raided our house and forced my husband to sit down tied him and led him into the main house from the kitchen demanding money whilst beating him. The identity of the appellant was confirmed by Mr. Somaliland as well more or less in the same manner as his wife. He was positive that it was the appellant who came to his house in the company of others. There was a lamp in the house that was lit. The robbers came with a torch which they were also using. With all this testimony it is really very difficult for this court to fault the finding of fact by the trial magistrate. The appellant was properly and emphatically identified by the complainants and I must uphold the finding of the lower court. In all therefore the conviction can not be faulted and I proceed to dismiss the appeal in that regard. As to sentence I will be very brief. The appellant, to say the least, is a dangerous criminal who at the time of his arrest had terrorized the community in the area that he lived. The evidence in this case clearly shows he was the leader of the gang. That is why the stolen property was taken to his house. The prosecution introduced before court a record of the appellant’s previous convictions all of the same nature as the present offence. The manner in which the present offence was committed was horrifying and no doubt has left the complainants with a feeling of permanent insecurity. I uphold the sentence of twelve years imprisonment with hard labour. The appeal against sentence is therefore also dismissed. PRONOUNCED in Open Court this 17th Day of October 2007. A. K. C. Nyirenda J U D G E