R v Reddy & Reddy (Miscellaneous Criminal Application 3 of 2022) [2023] MWHC 66 (24 March 2023)

x if 2 Rep v Likki Manishanker and another — REPUBLIC OF MALAWI IN THE HIGH COURT Revenue Division Lilongwe District Registry | . Miscellaneous Criminal Application no. 03 of 2022 | (Being Criminal case no. 741 of 2021 in the Chief Resident Magistrate Court sitting at Lilongwe) The Republic ; and my eee Likki Manishanker Reddy © eas Suresh Kumar Reddy CORAM. ; . JUSTICE MATAPA KACHECHE i cae Mr. K Soko Counsel for the accused (applicants) Mr. A Chungu Counsel for the State (Respondent) Miss F Francisco Counsel for the State (Respondent) ORDER ON REVIEW ; This j is my ruling on a motion by the accused persons for a review of the decision of the Chief ” Resident Magistrate, sitting at Lilongwe, denying them their request to have two of the prosecution witnesses herein recalled to testify in the case against them. 2, The motion is brought under section 26(1) of the Courts Act and 1 Section 360 of the Criminal Procedure and Evidence Code. Sh ak, 3. The facts on which the motion is based are uncontested, The accused persons are ¢ answering 3 i ¢ uitits under the Customs and Excise Act in the lower court. It tial y. Justice Patrick Chirwa pi ‘gided over the case when he was the Chief Resident Magistrate (€ Upon being appointed a hidge of the High Court he ceased presiding over the matter dnd the few Chief’ Resident Magistrate took over the matter, By that time only two witnesses ‘tebtified aut ofa possible ten, . The accused persons, on the basis of section 165 of the Criminal’ Procedure and Evidence Code, filed a notice to recall the witnesses. Their ground for the request was that they wanted the Court to assess the demeanour of the witnesses. The Court dismissed the request. 4, The accused persons being aggrieved by the decision moved ihis Court to review the same. The notice of motion is framed in the following manner: i me fe WAL tds Whereas: this provision needs to be looked at as a whole, | ‘disjunctively. First there is subsection (1) which seems to cate Hiogistrate the power to tiiove herself to consider whether to recall witnesses or not. In that s scenario, the magistrate has, in amy view, no limitation on factors to consider when making her decision. Rep v Likki Manishanker and another “Tats TAKE NOTICE that the accused persons in the above ‘pat ‘cular ised ‘criminal "proceedings before the Chief Resident Magistrate Court sitting at Lilongwe shall eo move the High Court ... to review the aforementioned proceedings and satisfy itself ‘as to the correctness of the findings and orders recorded or “passed therein and as to ‘the regularity of the said proceedings”. 7 While it is not mandatory under Section 26 of the Courts Act and Section 360 of the Criminal Procedure and Evidence Code for the parties to be heard on review, -unless' a decision will be made against a party in which case such party must be heard, the motion herein was not a mere request for review, it was in a form of formal court proceedings requiring the parties to be present. So I heard both parties on the issues. - Counsel ‘for the accused persons has put the question for review, As is Houlbwiss was it lawful for the Magistrate to refuse to recall witnesses in terms of section 165(2) aid: Evidence Code? Counsel then submits that it was unlawful a own test other than the test prescribed by statute. of the Criminal Procedure > Magistrate applied her The State argues that the magistrate took into account the test required under statute to deny the accused persons request. Noting that the witnesses came as experts and their evidence was not controversial and that there was no exceptional issue that could not be remedied without the recalling of the witnesses. P Section 165 provides as follows: “ ~.. Cases heard by one magistrate continued by another magistrate, | . """(1) Subject to subsections (2) and (3) respectively, wherever any “magistrate, after “having heard and recorded the whole or any part of the evidence:in:an inquiry or _- trial, ceases to exercise jurisdiction therein and is succeeded, Whether by. virtue of we an order of transfer under this Code or otherwise, by another m m agistrate. “who has. «., and who exercises such jurisdiction, the succeeding map trate may act on‘ the ns evidence so provided by his predecessors, or partly recorded ‘by: ‘this predecessot and - a partly himself, or he may re-summon the witnesses and after. recording the reasons _: for the first mentioned magistrate’s ceasing to exercise jurisdiction recommence the "> inquiry or trial. (2) In any trial the succeeding magistrate shall, save where he is of the opinion that the presence of a witness cannot be obtained without an amount of delay or expense - which, in the circumstances of the case, he considers unreasonable, t re-summon and release the witness or any of them if so requested by an aceused /)) (3) The High Court may, whether there be an appeal or not, set aside: (al conviction " ‘passed on evidence not wholly recorded by the magistrate before whom the mh conviction was heard, if it is of opinion that the aco has been materially prejudiced thereby, and may order a new inquiry or trial. ee ao 10. HI o bee delaying One eof the reasons the [defence] raised jor pra one ‘indicated that such recall will t incur expenses on the part ofthe State, Rep v Likki Manishanker and another’ : On the. other hand, there is subsection (2) which guides the magis fe on factors to consider if there. is. a request for a recall. While subsection (1) does not grant the, ‘accused person a right to recall of a witness, subsection 2 does grant that right. The right is’ ‘hot ‘absolute: though. It has limitations. But the Limitations are in built within the subsection: ‘The: ‘limitation is where the magistre ate is of the opinion that the presence ofa witness cannot bé ‘obtained without an amount of delay or expense which in the circumstances of the case she: onside unreasonable. Other than this limitation the magistrate does not have much discretion'ji yatter, whete an accused person has requested for the recall of a witness. he Pe It has to be emphasized that it is recognised by the provision that when recalling the witnesses there would be a delay and expenses would be incurred. However, it is not all delay and expense that would warrant the magistrate to deny the request. The requirement is that the amount of such delay or expense should be considered unreasonable ‘in the ‘circumstances by the maagistrate wl at: Hy 1 Let me observe that indeed the accused has a righ i this witness but , the right is not absolute. The court has fo orm an oO. inion. th t ih e. fecall will not on P ‘on ihe “in the circumstances of the c case. 12: It was observed in the case of Rep v Sosola and othe omicide cause no. 69 © of 2019 in the order for directions for continued hearing’ of the case dated 18" "September 2018, where two of the 12 accused persons applied for the recall of state witnesses. The Honourable Judge, Justice D nyaKaunda Kamanga remarked that ‘recalling of witnesses occasions delay in a trial which is against the spirit of section —42(2)(HG) of the Constitution and therefore should be resorted to sparingly. _ Generally, a court will be reluctant to resummons witnesses. where it would ._ occasion inordinate delay in a case that had already been delayed or has taken long’. “Expense: can it be said that the witness can be secured without an amount of expense? The State has addressed the Court on the. dssue fof? expenses « and Peay ae ees allow the recall O Ht Record and uriher in addition ard: on'the court io tes wok were recorded by the preceding Chief Resident Magistrate, now Judge.’ ae he: ‘Court believes the accused person will not be prejudiced in any way should these witnesses not, be recalled, The accused persons were legally represented by competent Counsel in the case when the witnesses testified, they had opportunity to challenge his evidence and test it through the rigors of cross-examination. 14, Further, the Court has noted that since the proceedings commenced there have "si. been two attempts by defence Counsel to have the accused } per: sons discharged on _ the grounds that the State was not ready to prosecute them 1210 ‘the fact they were aid have the accused Hi i Rep v Likki Manishanker and another oe discharged was the matter delaying. Obviously if the State witnesses are going to ‘be recalled it will be a recipe for [delaying] the matter further. 15. It is the opinion of this Court that it will be unreasonable to recall the two witnesses as prayed by the defence Counsel, when their; evidence will not be the ne only evidence that the Court will rely upon in arriving at its: devision, there are 7 pb: appreciate their .. more witnesses to be called by the State, whom the cour 1). demeanor. 7 16, ‘Accordingly this prayer for recall is not allowed. It is ai sed inits eiitirety. ” (Emphasis supplied by me). es es of delay: and expense layor expense would be 13. Clearly, i in my view, although the Acting CRM did mention the she did not make a finding or form an opinion that such unreasonable in the circumstances. She clearly acknowledged that the State mentioned that they would incur expense by recalling the witness, which is inevitable anyway and the framers of the law knew that. But she needed to form an opinion.that such expense would be unreasonable in the circumstances which she did not. The same applies to the delay which she mentioned. r recall: oh 15, Her reason for finding it unreasonable to recall the witnesses is’ ‘foul at paragraph : 15 where she states that the witness’ evidence will not be the only evidence, that: there would be 7 more ‘ witnesses for the Court to assess the demeanour. In my view the *deinteandur of one witness caiinot be substituted with that of another. This reason and all other considerations cannot hold PPh oh gta Y in n light of the requirements of section 165. * i 16, She also formed an opinion that the non-recall of the witnesses would 1 in no way prejudice the accused persons as the accused were legally represented throughout the proceedings. In my view it does not matter whether an accused is represented or not. if it were so the law should | have expr essly stated that. a in La. 17.1) ‘therefore remit the file with a direction that the magistrates shou Specifically with reference to the reasonableness of the amount, of delay, or gxpense to be incurred by the recall of the witness. _itis’so ordered today the 24"" day of March, 2023. ; Chimbizgani Matapa Kacheche Judge.