R v George, Kahova, Gwaza & Erick (Confirmation Case 290 of 2013) [2015] MWHC 521 (21 April 2015)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CONFIRMATION CASE NO 290 OF 2013 THE REPUBLIC V ALLAN FESTON GEORGE AND DAVIE KAHOVA AND RITCHARD GWAZA AND JONES ERICK CORAM: JUSTICE D F MWAUNGULU Maele, Counsel for the four accused persons State and Counsel, absent Mwanyongo, Official Court Interpreter Constitutional Law — Constitution -section 42 (2) (e)) — right of appeal — review or appeal — alternate or cumulative right Human Rights — Constitution —section 42 (2) (e)) — right of appeal — review or appeal — alternate or cumulative rights Human Rights — law expanding or adumbrating right does not offend a right — constitutional Human Rights — Constitution — section 42 (2) (¢) — right not to be forced to make a confession — not prima facie contradicted by law providing for admissibility of a confession Human Rights — Constitution — section 19 (3) — right against torture — not prim facie affected by law providing for admissibility of a confession Human Rights — right to a fair trial — right to a public hearing — scarcely achieved by holding a trial at precincts of a restricted and protected prison for treatment of offenders or detention of suspects Courts — Jurisdiction — Criminal jurisdiction — parties and a court cannot by agreement oust or add to a jurisdiction of a court Courts — Subordinate Courts — Criminal Procedure and Evidence Code — venue — only at a place directed by the Chief Justice — proceedings held in precincts of a prison — no direction by the chief Justice Courts - Subordinate Courts — Venue — power of Chief Justice — direct that trial be held at a place generally — power to direct that a specific place be a venue — power to direct that a specific proceeding be held at a specific place Public hearing — open court — where the public generally has access — precincts of a prison for treatment of offenders and detention of suspects — not open court Public hearing — open court — criminal proceedings held at precincts of a prison for treatment of offenders and detention of suspects — proceedings a nullity - and can be set aside Criminal Procedure — proceedings a nullity — appeal court — set aside the proceedings — order retrial Criminal Procedure — proceedings a nullity — retrial — where there is no prejudice — prejudice if most of sentence served Criminal Procedure — date in charge conflicting with evidence — date not integral part of crime — only if important to prove a crime — discrepancy resolved by evidence — otherwise a particular of a count — not element of a crime é Constitutional Law — section 19 (3) of the Constitution — right against torture — not directly affected by subservient law providing for admissibility of evidence Constitutional Law — section 42 (2) (c)) of the Constitution — right not to be forced to make a confession — not directly affected by subservient law providing for admissibility of evidence Constitutional Law ~— Human rights — Restriction or Limitation — question not whether subservient law is inconsistent with a human right — question must be is it a limitation or restriction on a right — subject to section 44 or 45 testing Human Rights — right against torture — section 176 of the Criminal Procedure and Evidence Code — not affecting right — section 1760f the Criminal Procedure and Evidence Code only applies to relevant admissible confessions — a confession obtained in circumstances offensive to section 193 (3) is relevant but inadmissible under general law — cannot be admitted under section 176 of the Criminal Procedure an Evidence Code Human Rights — right not to be forced to make a confession — can be limited by law — not affected by section 176 of the Criminal Procedure and Evidence Code — section 176 of the Criminal Procedure and Evidence Code does not apply to inadmissible confessions, even if relevant Evidence — confessions — inadmissible if obtained in circumstances in sections 19 (3) and 42 (2) (c) of the Constitution Evidence — confession — objection on grounds of section 19 (3) and 42 (c) of the Constitution or otherwise — court must decide on the first premise — whether a confession was obtained in spurious circumstances — exclude confession if obtained in spurious circumstances — admit if obtained voluntarily Evidence — confession — section 176 of the Criminal Procedure and Evidence Code — only admissible if relevant and admissible — confession obtained under duress is relevant but inadmissible Evidence — confession — admissible — cannot be impugned for authorship or voluntariness — can be weighted — by pointers showing it is materially true Evidence — confession — retracted — question of mixed law and fact — trial by jury ~— a question for a judge — not jury — if retracted — confession excluded from the jury Evidence — confession — retracted — trial without a jury — judge may receive evidence — exclude confession if successfully retracted — Evidence — confession — admissible — materially true — may look for pointers — no need jor corroboration of a confession Statute — section 176 of the Criminal Procedure and Evidence Code — confession — admissibility — relevant and admissible — admissibility based on Constitution and general law — a confession obtained by compulsion or inducement — inadmissible under section 176 of the Criminal Procedure and Evidence Code Mwaunegulu J Précis JUDGEMENT This matter comes under review from a court of first instance under section 42 (2) (e) of the Constitution, sections 25, 26 and 28 of the Courts Act and sections 15, 360, 362 and 363 of the of the Criminal Procedure and Evidence Code The court below convicted Allan Feston George, Davie Kahova, Richard Gwaza and Jones Erick of robbery, an offence under section 301 of the Penal Code. Initially, the accused persons were without legal representation. Counsel Maele sought and was allowed to represent the accused persons on review. On hearing day, the state never appeared. The court proceeded without the state under section 363 of the Criminal Procedure and Evidence Code. It is certain the assailants robbed two members of staff of an air time provider agent and a customer at a point of sale. The assailants stalked the air time provider’s agents from morning and pounced between 1:00 and 3:00 o’clock pm sure the air time provider’s agents, then, made millions of kwachas. What, listening from counsel for the accused persons, are doubtful are the legality of the proceedings and the judgment of the Court below. Review Power The powers to review or appeal in criminal proceedings, probably pose constructional problems of section 42 (2) (e) of the Constitution: “(2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right ...to have recourse by way of appeal or review to a higher court than the court of first instance ...” This section, for criminal proceedings at first instances, provides for a right of appeal or review. The word ‘or’ suggests alternative rights, right of appeal or review. From this rendition, for High Court criminal proceedings, the right to appeal under section 11 of Supreme Court of Appeal Act suffices, unless, of course, any other law, under section 104 of the Constitution, confers review jurisdiction and procedures for the Supreme Court of Appeal like sections 25, 26 and 28 of the Courts Act and sections 15, 360, 362 and 363 of the of the Criminal Procedure and Evidence Code do to the High Court. For matters from courts below this court, 18, 19, 25, 26 and 28 of the Courts Act and sections 15 and 346 to 363 of the of the Criminal Procedure and Evidence Code confer both review and appeal jurisdictions in criminal proceedings on the High Court. Prima facie, there is, therefore, conflict between the Constitution, on the one hand, and the courts Act and the Criminal Procedure and Evidence Code, on the other, in providing both review and appeal jurisdictions. To resolve the matter is to regard, as it should be, section 108 (2) of the Constitution as creating a right only and not dealing with a court’s jurisdiction. Sections 44 (1), 44 (2) and 45 of the Constitution must be understood as only prescribing limitation to and proscribing derogation from, respectively, rights. Statues, therefore, can expand and adumbrate rights without contradicting the Constitution of the right. In this regard, therefore, a statute that confers what in section 42 (2) (e) of the Constitution are alternative rights, together, cannot be offending the Constitution. Alternatively, assuming that section 42 (e) of the constitution provides alternate rights, a statute conferring additional jurisdiction to the High Court under section 108 (2) of the constitution must be understood distinctly from complying with what, in essence, is a fundamental right that can be expanded but not restricted. It might be that, given that section 42 (2 (e) of the constitution confers alternate rights, a statute conferring jurisdiction and providing review procedure should be considered by the legislature. On the other hand, given the status of the High Court in its original and appellate, it might not necessary to give the Supreme Court of Appeal review jurisdiction. In relation to the Supreme Court of Appeal, therefore, the review power, from a policy perspective, is not necessary. On the other hand, this court has got both appellant and review jurisdiction in criminal cases from courts of first instance below it. As already stated, there is no issue about the robbery. The assailants, who stalked air time provider’s agents demanded and obtained cash and air time with threats generally and use of a gun. There is, on the facts, no doubt about the robbery itself. The onus, however, was, as usual, on the prosecution to prove, beyond reasonable doubt, that the appellants authored the offence. Mr Maele, 5 among other things, thinks that, on the evidence and the law, the prosecution barely, if it all it did, discharged that duty. Before considering this, however, it is useful to deal with jurisdictional question Mr Maele raised, precisely because jurisdiction must, before all else, be prioritized. Ste Mr Maele contends that these proceedings occurred, and they should not have occurred, on the general law, in prison precincts. Of course, if they did occur in prison, Mr Maele is right, in my judgment, that the proceedings were nullity. His submission bases on a decision of this court in Chitsa and another v Republic (2009) Miscellaneous Criminal Application No 160 (HC) (PR) (unreported) with which, on the reasoning of Chipeta J, as he then was, I find no reason to disagree. It must be, I suppose, that the Chief Justice must, under section 36 of the Courts Act, declare a place where courts subordinate to the High Court must exercise jurisdiction: “The sittings of subordinate courts shall ordinarily be held in such places as the Chief Justice may direct and, subject to any directions of the Chief Justice, at such times as the magistrate constituting the court may deem most adapted to facilitate the business of the court.” There is no doubt in the section, therefore, about who determines where and where proceedings in subordinate courts should occur. Moreover, the right to a public hearing under the Constitution and the general law is barely, if at all, served by trials in a restricted area that a prison dedicated to imprisonment of offenders and detention of suspects as the Chichiri Prison is known to be. Section 42 (2) (f (i) of the Constitution provides: “(1) Every person who is detained, including every sentenced prisoner, shall have the right ... as an accused person, to a fair trial, which shall include the right .... to public trial ...” Section 60 of the Courts Act Provides: “In exercise of its jurisdiction, powers and authorities the proceedings of every court shall, except as otherwise provided by any other law for the time being in force, be carried on in an open court to which the public generally may have access: Provided that any court shall have power to hear any matter or proceeding or any part thereof in camera if, in the opinion of the presiding Judge, — or magistrate, it is expedient in the interest of justice or propriety or for other sufficient reason so to do.” There is no indication that the Chief Justice authorized generally that trials can be conducted in prisons, that the trials can be conducted at Chichiri Prison or that this specific case should be held at Chichiri Prison. Such an order would be inconsistent with section 42 (2) (f) of the Constitution and, if a limitation or restriction, foul of section 44 (1) of the Constitution. If made under section 60 of the Courts Act, the order would be inconsistent with section 60 (1) and, therefore, ineffective under section 21 (b) of the General Interpretation Act. Counsel for the accused persons, argues, further, that the court should have and never consulted his clients about whether, as the public prosecutor requested, to have trial at Chichiri Prison. The argument is, in my judgment untenable. Parties cannot, by agreement, confer or whittle (criminal) jurisdiction of a court. Parties could not, therefore, among themselves or at the aegis of a court determine to have trial or hearings at places the Chief Justice has not designated. The court and the Chief Justice could not by such an order determine that trial be held at a prison. Lord Steyn in R v London Borough of Hammersmith and Fulham and others Ex P Burkett [2002] UKHL 23 points the limits of judicial policy on legislation: “The legislative three months limit cannot be contracted by a judicial policy decision.” .~ Inconsistency in dates between evidence and charge does not necessarily vitiate The first point, argued vehemently by Mr Maele, is that the accused persons could not have committed the offence because, according to the amended charge on the dates on which the offence was committed, the accused persons were already in prison. Mr Maele can only be right if, as he seems to suppose, dates on which a crime occurs are material to the offence charged an in which in a charge comports setting aside a conviction. Such an error, shorn of more, cannot always be fatal to a conviction. As a matter of general law, the date of the offence need not be pleaded, although in practice and principle it is. Moreover, courts systematically consider dates as particulars of a charge and unrelated to the elements of the crime charged and, as a consequence, errors found in them in the 7 charge, may be corrected by the evidence or inconsequential where omission is not prejudicial to an accused person. The cases of Commonwealth v. Hosmer, 49 Mass. App. Ct. 188 (2000); Commonwealth v. Jervis, 368 Mass. 638 (1975; contrast Commonwealth v. Montanino, 409 Mass. 500, 511-13 (1991) Commonwealth v. Kirkpatrick, 423 Mass. 436 (1996) and Commonwealth v. King, 387 Mass. 464 (1982), although only persuasive on this court, are good law. In the common law of England the approach is not any different. The starting point is a statement by Atkin J in R v Dossi [1918] 13 Cr App R 158: "From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment." In Jevons v Cosmosair plc (1998) 162 JP 68, Mantell J said: "The question of date, whether it be in an information or summons or an indictment, is always a matter capable of amendment and the mere fact that the date is wrongly stated, will seldom, if ever, be a matter which would lead a court to hold that the charge was void." The principle appears in R v_ Pritchett{2007] EWCA Crim 586; R v Goldsmith [2009] EWCA Crim 1840; InR v Mansfield [2009] EWCA Crim 2158; Burrington v RSPCA [2008] EWHC 946 (Admin); Asda Stores Ltd _v Wandsworth Borough Council [2007] EWHC 433 (Admin). In R v_ Dossi was applied by the Court of Appeal in another alibi case, R v Lowe [1998] EWCA Crim 1204, where Henry LJ said: "The law is clear. As a general rule, if the evidence at trial as to date differs from the date laid in the count, that is not fatal to a conviction(Dossi). The exception will be where the date may determine the outcome of the case, 8 such as where the age of the victim is part of the charge. It follows from the above that it is not strictly necessary to amend the indictment if the evidence shows that the offence was committed on another date, rather than the actual date specified in the indictment." Lowe argued that even if it was not necessary for the date of the alleged offence to have been amended, he should have been given the opportunity to seek an adjournment so that an investigation could have been made as to whether he had an alibi for other dates. Henry LJ noted, however, that "it must have always been apparent to the Defence that there could be no certainty as to the date, that the date was not a material averment in this indictment, and that what mattered was whether the events had happened." One prosecution witness puts the dates as 29 September 2012; two prosecution witnesses do not mention the date; and two prosecution witnesses mention 30 September 2012. Of course, the caution statements were recorded on 29 September 2012. There is no explanation, however, for this discrepancy. On the other hand, on the generality of the evidence, the discrepancy is, in my judgment, inconsequential. Confessions obtained in contravention of section 19 (3) and 42 (2) (c) of the Constitution must be excluded The second point raised against the lower court’s judgment is that the lower court did not make any finding of fact on whether the four persons’ confession statements were obtained illegally. He relies on a statement of Nyirenda J, as he then was, which expresses the correct position, in Kunje v Republic [2002-2003] MLR 133 where this court said: “It is tempting to deal with the whole issue of admissibility of confession statements in our law today. I can only refer those that might be interested in following the debate to the cases of The Republic v Chizumila and others Confirmation Case No. 316 of 1994 (unreported), The Republic v Chinthiti and others Criminal Case No. 64 of 1997 and the case of S v Zuma and others Case No. CCT/5/94 a decision of the South African Constitutional Court. I have, myself, and I believe I am right, taken the position that once it is established that a confession was obtained from an accused person by some degree of force or duress, and let me add, persuasion or upon some promise of some reward, it ceases to be free and voluntary. It is therefore inadmissible under our law today. Section 42(2) (c) of the Republic of Malawi Constitution is absolute in my view and does not leave any room for a debate on the weight to be attached to such a statement. In support of this view is the fact that under the Malawi Constitution torture of any kind or cruel, inhuman or degrading treatment or punishment is prohibited absolutely; see section 19(3) as read with section 44(1)(b). Section 42(2)(c) is therefore not alone on the issue of compelled confessions. It will probably be instructive in this respect to refer to the definition of torture. In Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“TOT”) torture is defined as follows: “the term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information ora confession” Inhuman or degrading treatment or punishment are merely lighter forms of torture which are nonetheless absolutely prohibited. This, therefore, takes me back to the position that confession statements which are not freely and voluntarily given cannot be admitted in evidence and therefore that the questions of weight or pointers in the statement does not arise.” The statement underscores the importance of making a finding of fact that the confession statement was obtained in circumstances objectionable under section 19 (3) read with section 44 (1) (b) of the Constitution. There, however, has been no doubt since Chizumila v Republic [1994] MLR 288 was decided that a confession obtained in circumstances described in this case would be excluded. There is no difference between what Nyirenda J states in Kunje v Republic and the statement made in Chizumila v Republic. In the latter case, decided earlier than Republic v Chinthiti, this court said: 10 “The lower courts, therefore, have had, up to 17 May 1994, a problem in dealing with confessions obtained by force. The earliest Supreme Court decision seemed to require corroboration as a matter of practice. A subsequent decision is obiter. The latest decision of the Supreme Court seems to suggest that evidence obtained by duress could be excluded all together. I would think, therefore, that the trial magistrate, having found that the statements from the accused persons were obtained by duress, he should have excluded them completely. ....the 1994 Constitution in Article 42 (2) (c) now provides ... “Whatever uncertainty there might have been in the courts before 17 May 1994, under the fundamental law a confession obtained through compulsion would most likely be excluded.” The Court in Republic v Chinthiti and others (1) [1997] 1 MLR 59 referred to Chizumila v Republic (decided earlier. At page 68 the Court in Republic v Chinthiti said: “What is certain is that section 176 of our Criminal Procedure and Evidence Code cannot stand the test of time. To the extent that the provision allows for involuntary confessions, it is inconsistent with section 42(2) (c) of the Constitution and, therefore, pursuant to section 5 and section 200 of the Constitution, insofar as to the extent of the inconsistency, the section is invalid. “This leads to the conclusion that confessions obtained through compulsion are a thing of the past and are inadmissible.” / The last part of this paragraph is consistent with the statement in Chizumila v ~ Republic. In Jasi v Republic (1997) Criminal Appeal Case No. 64 this court considered the first part of the quotation in the quotation declaring under section 5 of the Constitution that section 176 of the Criminal Procedure and Evidence Code is unconstitutional for contravening section 42(2)(c) of the Constitution. This is because, as the quotation above suggests, section 176 (1) of the Criminal Procedure and Evidence Code was adjudged unconstitutional for being inconsistent with section 42 (2) (c) of the Constitution, not section 19 (3) of the Constitution. This court in Republic v Chinthiti and others (1) never referred to Section 19 (3) of the Constitution. Kunje v Republic, decided later, mentions section 19 (3) for the 11 first time. Republic v Chinthiti and others (1) determined that section 176 of the Criminal Procedure and Evidence Code was inconsistent with section 42 (2) (c) of the Section 19 (3) of the Constitution. Section 42(2) (c) of the Constitution provides: “Every person arrested for, or because of, the alleged commission of an offence shall, in addition to the rights which he or she is, as a detained person, have the right... not to be compelled to make a confession or admission which could be used in evidence against him or her.” Section 19 (3) of the Constitution provides: “No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.” Section 176 (1) of the Criminal Procedure and Evidence Code, then, provided: “Evidence of a confession by the accused shall, if otherwise relevant and admissible, be admitted by the court notwithstanding any objection to such admission upon any one or more of the following grounds (however expressed) that such confession was not made by the accused or, if made by him, was not freely and voluntarily made and without his having been J unduly influence thereto. ’ Section 176 (3) of the Criminal Procedure and Evidence Code, then, provided: “Evidence of a confession admitted under subsection (1) may be taken into account by a court, or a jury, as the case may be, if such court or jury is satisfied beyond reasonable doubt that the confession was made by the accused and that its contents are materially true. If it is not so satisfied, the court or the jury shall give no weight whatsoever to such evidence. It shall be the duty of the judge in summing up the case specifically to direct the jury as to the weight to be given to any such confession. ” Prima facie, sections 19 (3) and 42(2) (c) of the Constitution, on one hand, and section 176 of the Criminal Procedure and Evidence Code, on the other, cover different things. Sections 42(2) (c) and 19 (3) of the Constitution proscribe, respectively, compelling an accused person from confessing and torture, cruel, inhuman and degrading treatment. That is very different from what section 176 of 12 the Criminal Procedure and Evidence Code covers: admissibility of confessions. Consequently, on the face of it, section 176 is not inconsistent with sections 19 (3) and 42(2) (c) of the Constitution. Section 176 of the Criminal Procedure and Evidence Code would have been inconsistent with section 19 (3) and 42 (2) (c) of the Constitution if sections 19 (3) and 42(2) (c) of the Constitution provided for admission of confessions. Section 1 Section 176 (1) of the Criminal Procedure and Evidence Code cannot, therefore, cannot, on the face of it, be inconsistent with sections 19 (3) and 42 (2) of the Constitution. In another sense though, section 176 of the Criminal Procedure and Evidence Code would have the effect of contravening sections19 (3) and 42 (c) of the Constitution. There, it would be subject to sections 44 and 45 of the Constitution analysis. Section 45 of the Constitution does not mention 42 (2) (c) of the Constitution. “Derogation, however, is not the same thing as ‘restriction’ or ‘limitation.’ Consequently, section 176 of the Criminal Procedure and Evidence Code has to be amenable to a section 44 of the Constitution analysis. Republic v Chinthiti never, purporting to annul section 176 of the Criminal Procedure Code based on inconsistence with section 42 (2) (c) of the Constitution, subjected the provision to a section 44 test. The questions, if section 176 of the Criminal Procedure and Evidence Code is vitiated under section 42 (2) (c) or section 193 (3) of the Constitution, is twofold. The first question is whether section 176 of the Criminal Procedure and Evidence Code is inconsistent with section 42 (2) (c) of the Constitution with the result that if it is it is invalid because of section 46(1) of the Constitution, not necessarily section 5, as suggested by Republic v Chinthiti. The second question is, if section 176 of the Criminal Procedure Code is inconsistent with section 42 (2) (c) is whether section 176 of the Criminal Procedure and Evidence Code is a restriction or limitation on section 42 (2) (c) of the Constitution. If it was a limitation or restriction, under section 44 of the Constitution, as stated in Jasi v Republic, it had, beyond establishing whether Section 176 of the Criminal Procedure and Evidence Code, being of general application, to be shown by the party claiming it was a restriction or limitation that was reasonable, recognized by international human rights standards and necessary in an open and democratic society and never negates the essential content of the right or freedom in section 42 (2) (c) of the Constitution. There is no presumption that a statute is constitutional just from that 13 it was passed (per MacKinnon ACJO, Re Ontario Film and Video Appreciation Society and Ontario Board of Directors [1984] 7 CRR 129, 131). This failure to approach the matter in this manner is what caused this court in Jasi v Republic to state that Republic v Chinthiti (1) never effectively declared Section 176 of the Criminal Procedure and Evidence Code unconstitutional. Constitutionality of section 176 of the Criminal Procedure and Evidence Code is appreciated by considering what the section says and its purpose. The legislative object was, just like any provision in the Chapter of the code, to provide for admissibility of evidence, in this case confessions. Section 176 (1) then provided: “Evidence of a confession by the accused shall, if otherwise relevant_and admissible, be admitted by the court notwithstanding any objection to such admission upon any one or more of the following grounds (however expressed) that such confession was not made by the accused or, if made by him, was not freely and voluntarily made and without his having been J unduly influenced thereto. ’ Section 176 (1) is often read without considering the key words constituting the premise for admission of confessions. It is a prerequisite for admitting a confession under section 176 (1) of the Criminal Procedure and Evidence Code that a confession be ‘relevant and admissible.’ There is no doubt that a confession is relevant and, therefore, the first threshold in section 176 (1), namely, relevance is invariably met by most confessions. The second threshold, admissibility, depends on the general law. The general law is that a confession obtained by duress is inadmissible. There is nothing in section 176 (1) that suggests that a confession obtained under duress is admissible. On the contrary, section 176 of the Criminal Procedure and Evidence Code requires that a confession, even if relevant, must be admissible. The legislature never uses words in vain. The requirement of admissibility is critical if a confession is to be admitted under section 176 of the Criminal Procedure and Evidence Code. The proper construction of section 176, therefore, is that the latter part of the section only applies to a confession which, while relevant, is admissible. A confession that is admissible is only one that is, if made by the accused person, 14 voluntary. Once a confession passes the muster and is admitted, section 176 (1) bars subsequent objections based on authorship and involuntariness. Section 176 (2) excludes confessions made by others. Section 176 (3) provides for weighing of an admitted and admissible confession. There is, therefore, nothing in section 176, that provides for admission of confessions offending sections 19 (3) and 42 (2) (c) of the Constitution. Section 176 of the Criminal Procedure and Evidence Code, therefore, is not inconsistent with sections 19 (3) nor 42 (2) (c) of the Constitution. The conditions for admission are twofold: relevance and admissibility. On the first question, therefore, on this construction, section 176 of the Constitution is inconsistent with neither section 19 (3) nor 42 (2) (c) of the Constitution. For the same construction, section 176 of the Criminal Procedure and Evidence Code is not unconstitutional on the second question. If, which is not the case, section 176 of the Criminal Procedure and Evidence Code is a limitation or restriction of sections 19 (3) and 42 (2) (c) of the Constitution, it will be vitiated unless, it, being law, is reasonable, recognized by international human rights standards and necessary in an open and democratic society. Neither Kunje v Republic nor Republic v Chinthiti covered the justificatory aspect of section 44. The importance of evidence on the matter is stressed in Jasi v Republic. The oversight was probably because the court determined section 176 of the Criminal Procedure and Evidence Code unconstitutional. As seen, section 176 of the Criminal Procedure and Evidence Code is inconsistent neither with section 19 (3) nor 42 (2) (c) of the Constitution. On the other hand, on proper construction of section 176 of the Criminal Procedure and Evidence Code, apart from everything, else, section 176 of the Criminal Procedure and Evidence Code is a reasonable, if it be one, limitation or restriction on the right. Our section 44 (1) is not much different from section 1 of the Canadian Charter of Rights and Freedoms. Section 11 (1) (c) of the Constitution enjoins this court when interpreting or applying the Constitution to regard comparable foreign case law. There is a passage in Regina v Oakes [1986] 19 CCR 309, 336-337 by the Supreme Court of Canada which, for reason of this matter, I quote verbatim: 15 “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v Big M Drug Mart Ltd, supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: Rv Big M Drug Mart Ltd, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R v Big M Drug Mart Ltd. at p. 352. Third, © there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance”. As earlier stated, the purpose of section 176 of the Criminal Procedure and Evidence Code was to provide for the law on confessions. This overall objective must not, as it must be, to willy-nilly interfere with individual rights and freedoms in our Constitution. Where limitations or restrictions are permissible overall goals and public interest concerns must be balanced against individual rights. In this case, section 176 of the Criminal Procedure and Evidence Code is not inconsistent with sections 19 (3) and 42 (2) (c) of the Constitution. It by itself excludes 16 av confessions which, albeit relevant, are inadmissible either under the general law or sections 19 (3) and 42 (2) (c) of the Constitution. Even for confessions admitted, section 176 of the Criminal Procedure an Evidence Code requires that they be materially true and could be useless if for some reason the court decides to attach no weight to them. The protection afforded in section 176 of the Criminal Procedure and Evidence Code has been subsumed by stressing compulsion. The truth of the matter is that section 176 should be construed deliberatively and deliberately. Read that way, section 176 is clear, a confession will be admitted in evidence if it is both relevant and admissible, not otherwise. Admissibility is a question of law; and the Constitution and the general law under it, the common law, has never regarded statements obtained by duress or inducement admissible. There must, therefore, be another reason, from the Constitutions, based on sections 19 (3) and 42 (2) (c) of the Constitution, for excluding confessions. In Republic v Chizumila, as demonstrated in Jasi v Republic 1 concluded that a confession obtained in circumstances of torture and inhumane degrading treatment would be inadmissible for different reasons other than constitutionality of Section 176 of the Criminal Procedure and Evidence Code. First, where a statement obtains in circumstances in section 19 (3) and ina manner contrary to section 42 (2) (c) of the Constitution, the accused person would be entitled to an effective remedy for violation of those rights under sections 41 (3), 46 (2) (a), 46 (3) and 46 (4) of the Constitution. The effective remedy, in my judgment, is to exclude confession evidence all together. Secondly, a confession obtained under any of these circumstances would be inadmissible because of section 176 (1) of the Criminal Procedure and Evidence Code itself. A court, therefore, required by sections 4 and 10 (2) of the Constitution to apply the Constitution at all levels and in all areas of its dealings would, if there is a suggestion, direct or indirectly, that a confession was obtained in circumstances of compulsion under section 42 (2) (c) of the Constitution or torture or degrading and inhumane treatment under section 19 (3) of the Constitution must, therefore, as a preliminary matter, determine whether this was the case and, if it was the case, exclude the evidence completely. The manner and evaluation of determining and evaluating depends on many things. 17 First, it depends on whether or not there is a jury in the proceedings. If there is, there must be a trial within a trial. If there is no jury and a judge or magistrate sits as a trier of fact and law evidence of circumstances may be received during trial without a trial within a trial. The judge in the latter case, however, has to find as a fact whether a confession was obtained in circumstances discussed. The epithets of admissibility and weight, introduced by section 176 of the Criminal Procedure and Evidence Code, not the Constitution are probably confusing. They are more pronounced in the amended Criminal Procedure and Evidence Code: “(1) Evidence of a confession by the accused shall, if otherwise relevant and admissible, be admitted by the court notwithstanding any objection to such admission upon any one or more of the following grounds (however expressed) that such confession was not made by the accused or, if made by him, was not freely and voluntarily made and without his having been unduly influenced thereto. (2) No confession made by any person shall be admissible as evidence against any other person except to such extent as that other person may adopt it as his own. (3) Evidence of a confession admitted under subsection (1) may be taken into account by a court, or jury, as the case may be, if such court or jury is satisfied beyond reasonable doubt that the confession was made by the accused and that its contents are materially true. If it is not so satisfied, the court or the jury shall give no weight whatsoever to such “evidence. It shall be the duty of the judge in summing up the case specifically to direct the jury dd as to the weight to be given to any such confession. As a consequence, the distinction between making a statement not admissible and not attaching any weight to it may be obscure. Analytically, however, the distinction can be fundamental. Weight can only be attached to an admissible statement; it cannot be attached to an inadmissible one. Consequently, section 176 (3) requires, once a statement is admitted, for the court to determine what weight to attach to it. Section 176 lays two premises: authorship and material truthfulness. Normally, authorship is seldom an issue; material truthfulness is. The Supreme Court decisions of Chiphaka v Rep (1971-72) 6 ALR (Mal) 214 and 18 ee Mafunga and Another v Rep (1982) Criminal Appeal No. 23(MSCA) (unreported) require for the latter that the court find as a fact what the pointers, if any, are and act accordingly. The Supreme Court of Appeal decisions in Chiphaka v Republic and Maonga v Republic [2002-2003] 175 demonstrate that pointers are only relevant for a voluntary statement and, therefore, a confession admitted, properly so. Pointers are not necessary to prop an inadmissible confession. Where a confession statement is objected to because it was obtained illegally, a distinction must be made between establishing the basis of illegality and the admissibility of a confession statement. The former is important to the latter. If a court determines that the confession statement was not illegally obtained, it is admissible, as a matter of course, whether under section 176 of the Criminal Procedure and Evidence Code or common law. The question is whether, where the court finds that the evidence was illegally obtained, it is admissible all the same. One way of considering section 176 as a whole is to construe it as suggesting that it admits illegally obtained evidence all the same. Under this construction, a statement obtained in circumstances proscribed by section 19 (3) of the Constitution would be considered unconstitutional. There are conceptual problems with this rendition for it presumes that the illegality has already been determined. If this were so, the accused has just to allege, without more, to wit, no proof, and a confession would be inadmissible, if section 176, as suggested in Republic v Chinthiti, is unconstitutional. It must be, therefore, that the illegality of a confession statement must first be established by evidence. It is in this respect that section 176 of the Criminal Procedure and Evidence Code, as it was, must be understood. In subsequent cases this court, appreciating section 176, distinguished between trials by or without a jury, to underscore the distinction which Chizumila v Republic makes and the constitutionality of section 176 of Criminal Procedure and Evidence Code. The question of admissibility of an illegally obtained evidence is, technically speaking, a question of mixed law and fact. It is a question of fact and, therefore for the jury, as trier of fact, whether, for purposes of section 19 (3) of the Constitution, a confession was obtained in circumstances proscribed. Admissibility of that evidence is a question of law and, therefore, in the purview of a judge. As a matter of principle, questions of mixed fact and law where the allegation is that the 19 statement was obtained by duress, are left to a judge, not a jury (Timothy v R [2000] 1 WLR 485). Consequently, judge must first of all determine as a matter of fact that there was torture and subsequently exclude or admit a confession when sitting alone (Palitu and Others v Republic (2001) Criminal Appeal No 30 (HC) (PR) (unreported); Republic v Jasi The constitutionality of section 176 has been a matter for authoritative works. Writings by legal authors, even though, unlike in civil law, relegated at common law, are a source of law and should probably, to inspire real and meaningful discourse with this source of law, be escalated. On this aspect Danwood Chirwa in Human Rights under the Malawi Constitution, Juta, 2011 and Cassim Chilumpa in Admission in Criminal Trial of Evidence obtained in violation of Constitutionally Guaranteed Rights. Dr. Chirwa restricts to a section in a bigger chapter in his book. He certainly does not refer to the Supreme Court of Appeal decision in Maonga v Republic. He does, however, refer to Mawondo v Republic (2008) Criminal Appeal Case No. 8 (MSCA) (unreported), a Supreme Court decision. Dr. Chilumpha treats the whole subject on the matter. He, however, does not refer to this court’s decisions like Palitu v Republic. He certainly does not refer to the Supreme Court decisions in Maonga v Republic and Mawondo v Republic. Dr. Chirwa, in support of the decision of this court in Chinthiti & Others v Republic, referring to decisions of this court in Jasi v Republic, Palitu v Republic and Chizumila v Republic says: “In Republic v Chinthiti & Others (1), Nyirenda J (as then was) was correct in finding that s 176 of the Criminal Procedure and Evidence Code is inconsistent with s 42 (2) (c) of the Constitution to the extent that it allows for the admission of involuntary confessions ... However, the conclusion reached in Republic v Chinthiti & Others (1) has been criticized by Mwaungulu J in a number of judgments. His view seems to be that s 176 of the Criminal Procedure and Evidence Code is not inconsistent with the Constitution because it simply defines the manner in which confessions and admissions should be treated.” He then continues: “Lastly, in Stanley Palitu & Others v Republic, Mwaungulu J held: 20 necessary for admissible confessions. They do not deal with constitutionality of section 176 of the Criminal Procedure and Evidence Code. The Supreme Court dealt with constitutionality of section 176 in Mawondo v Republic. Dr. Chirwa says these about Mawondo: “In Felix Mawondo v Republic (2008) Criminal Appeal Case No. & (MSCA) (unreported), while the MSCA (Tembo JA writing for the court) endorsed the reasoning in these decisions, it made contradictory statements. On the one hand, it held that section 176 of the Criminal Procedure and Evidence Code was not unconstitutional because it requires that where it is proved that a confession statement was made involuntarily, no weight should be given to it. This holding amounts to saying that the statement need not be admitted into evidence at all. On the other hand, the MSCA held that an involuntary confession may still be admitted into evidence and be taken into accounts where the court or jury is satisfied beyond a reasonable doubt that the confession was made by the accused and that its contents are materially true. This holding clearly contradicts the first and amounts to an unjustifiable limitation on the right not to be compelled to make a confession or admission of guilt.” In Mawondo v Republic the Supreme Court of Appeal said: “Counsel has prayed that we should hold that section 176 of the Criminal Procedure and Evidence Code is unconstitutional in that it is inconsistent with section 42(2)(c) and section 19(3) of the Constitution. After a careful consideration of these provisions, and also in light of section 44 of the Constitution, we are of the firm view that section 42(2)(c) of the Constitution prohibits involuntary confession statements; and that section 176(1)(3) of the Criminal Procedure and Evidence Code does not contradict section 42(2)(c) of the Constitution. It merely regulates admission and application of confession statements in a criminal trial. Where, during trial, it is proved that a confession statement was involuntary, in that the appellant was either beaten or howsoever forced into signing a confession statement earlier admitted in evidence; thus what subsection (3) essentially provides. The confession statement is disregarded in its entirety. It is in that context the express view of the law that evidence of confession may be taken into 22 € account by a court or a jury if such court or jury is satisfied beyond reasonable doubt that the confession was made by the appellant and that its contents are materially true. If not so satisfied, the court or jury shall give no weight whatsoever to such evidence. Thus, the confession evidence shall be ignored, in its entirety. It is, therefore, the duty of the judge summing up the case specifically to direct the Jury as to the weight to be given to any such confession. Where the court directs that no weight be given to the confession statement, the court will base its decision to convict the accused of the offence charged on other evidence available in the case, quite apart from the confession statement. Thus, a conviction of the accused, then, must be supported exclusively by evidence other than his confession statement. ” This case probably settles the constitutionality of section 176 of the Criminal Procedure and Evidence Code. Unfortunately, the Supreme Court never discusses what the law was in this court. Actually, Nyirenda J who sat in Republic v Chinthiti and others was part of the Supreme Court decision. It is unclear whether the Supreme Court considered all the High Court decisions. The only observation, however, is what has been discussed earlier. In all the Supreme Court decisions, there has never been an interpretation of the actual section. It is clear that section 176 before and after the 2010 amendments sets preconditions for admissibility of a confession: relevance and admissibility. If relevance only mattered, the words ‘admissible’ would not have been used in the section. Section 176 of the Criminal Procedure and Evidence Code, by itself, excludes statements that are inadmissible. Dr. Chilumpha canvasses most jurisdictional and procedural matters that this court covered that the Supreme Court of Appeal has not covered. The court below never found whether the statement was voluntary or involuntary In this particular case, the lower court approached the matter in a manner Chizumila y Republic deprecates. Counsel for the accused persons is, therefore, right that the lower court should, before anything else, have first found as a fact whether, as the accused persons alleged, the confession was obtained in circumstances amounting to torture as described by the accused persons. There was conflicting evidence from the defence and the state on the matter that the lower court never resolved. 23 Instead, the lower court, proceeded to consider whether there were pointers to the truthfulness of the confession statements of the accused persons. This was, so to speak, putting a cart in front of a horse. For, if the confession found to have been obtained in circumstances amounting to torture, it was in admissible ab initio or in limine. Where a statement is obtained in circumstances amounting to torture, therefore, the question of pointers never arises. The question of pointers only arises when, the statement legally obtained, is admissible and decisions like Chiphaka v Republic and Mafunga and another v Republic, both Supreme Court of Appeal decisions are to the like effect. The lower court never resolved the question whether the confessions of the accused persons were obtained in circumstances of torture. This court, in so far as this was a credibility matter, cannot resolve the question because it, unlike the court below, does not have the opportunity to observe witnesses before it and assess their credibility. This court, therefore, excludes the confession statements of the accused persons in considering this review. This court, however, is bound by section 5 of the Criminal Procedure and Evidence Code: “(3) The important admission or rejection of evidence shall not, of itself, be a ground for the reversal or alteration of any decision in any case unless, in the opinion of the court before which an objection is raised— (a) the accused would not have been convicted if such evidence had not been given or if there was no other sufficient evidence to Justify the conviction; or (b) it would have varied the decision if the rejected evidence had been received.” Inconsistencies as to time of the crime inconsequential The other evidence available to the court came from direct testimonies from prosecution and defence witnesses. Counsel for the accused persons submits that the lower court improperly admitted identification evidence of PW 2, 3 and 4. The spirited argument, highlighting inconsistencies in the prosecution witnesses, is, in my judgment aptly answered by a statement in the Supreme Court of Appeal in 24 Nguluwe and another v Republic (2006) Criminal Appeal Case No 35 (MSCA) unreported: “We wish to observe that where several witnesses are called by a party it is not uncommon to trace inconsistencies in their story; where there is a total consistence in the story given by several witnesses, the impression may be created that they were coached and drilled to tell a similar story in court.” Counsel for the accused persons catalogues inconsistencies in details about time, who did what and where which on close examination, are inconsequential when one considers that the victims of this robbery were not alerted, and they could not have been about an otherwise sudden crime committed on them. Consequently, the differences in time in which the crime was committed as between 1 and 3 o’clock pm would, in this circumstances, be understandable. Equally, the discrepancies about who did what where depend on who and where the person testifying was. On the whole, the crime occurred on 27 March 2013 during a day when it has not been suggested that there was rain or clouds. The assailants were, on the evidence in no disguise and were for some time in conversation and company of their victims. The only consideration is whether, given that the victims were seeing the assailants for the first time, there should have been an identification parade. No need for an identification parade There is no evidence that there was one. On the other hand, an identification parade would not be necessary in a case such as this where, as has been demonstrated the assailants were with their victims for some time and generally the other evidence was strong (Rutherfold and Palmer v R (98 Cr. App. R 191. In this case, the lower court believed the prosecution witnesses and, therefore, rejected the alibi evidence (See also R v Kelly (TLR 23198. In my judgment the court below properly warned itself on the dangers of the mistaken identity and with, particular detail, considered all the information. The lower court considered the alibi The other argument raised for the fourth accused person is that the court below considered neither the alibi defence nor the evidence supporting it. On 25 balance, the lower court cannot be criticized in this manner. The accused persons, clearly because they were unrepresented in the court below, never complied with the requirement in section 193 A (1) of the Criminal Procedure and Evidence Code to, before commencement of proceedings, to notify the prosecutor that they were to enter a defence of an alibi. This failure, according to section 193 A (3), does not prevent them from relying on the defence. Counsel, relying on this Court’s decision in Bonzo v Republic [1997] 1 MLR 119, that it was for the prosecution to disprove the alibi. I do no think, however, that the lower court never considered the alibi defence or the defence itself. The lower court was very adamant that it, without any shadow of doubt, believed the three prosecution witnesses that the accused persons in different roles and stages of the crime executed it. This probably does not, as Counsel contends, mention the defence of alibi or evidence supporting it. It is, however, to my mind, a clear rejection of the defence of alibi and the evidence supporting it. Identification of the car used in the crime unnecessary On the other evidence received by the court below, the evidence of recent possession was one among many items of evidence to support the conviction. Counsel for the accused persons is right that, on balance, a jack easily passes hands and that, in the as many days after the robbery that the police found the jack, the doctrine of recent possession favoured the second accused than the state. The identification of the jack was not, in my estimation, as spurious as Counsel wants, based on this Court’s decision in Mbombo v Republic (2000) Criminal Appeal No 44 (HC) (PR) (unreported). Equally, on the matter as it was in the Court below, it was unnecessary, although this was done, to identify the motor vehicle used in the offence. The final point Counsel for the accused persons makes is that the court below should not have allowed the first prosecution witness to testify against the others before he was acquitted or convicted of the crime with which he, before the prosecutor withdrew him from the charge, was jointly charged with the others. It as is admitted, the prosecutor subsequently omitted the witness from the charge, I cannot understand why there can be any objection to him testifying except, may be, for that it has not been stated clearly that the prosecutor will not prosecute the witness. Counsel for the accused persons relies on this state by Bolt J in Banda v R 26 (1967-68) 4 ALR (Mal) 336, 340. In this matter the witness was removed from the charge; that is sufficient. Both Karima v R (1967-68) 4 ALR (Mal) 601 and Banda v R were decided before the Court of Appeal decision in R v Turner (1975) 61 Cr. App. R 66. The Supreme Court of Zambia decided Shamwana and 7 others v The People (1985) Z. R. 41 (S. C.) after R v Turner and, after reviewing all cases before R v Turner, said: “The clear picture that emerges from all this is that, although an accomplice is a competent witness, an accomplice who has been charged, either jointly charged in the indictment with his co-accused, or in the indictment though not under a joint charge, or indeed has been charged though not brought to the stage of an indictment being brought against him, shall not be called by the prosecution, except in certain limited circumstances. Those limited circumstances are that, where the prosecution are minded to call such accomplice as a witness, it is settled practice (a) to omit him from the indictment; or (b) to take his plea of Guilty on arraignment, or during the trial, if he withdraws his pleas of Not Guilty, or before calling him either (c) to over no evidence and permit his acquittal; or (d) to enter a nolle prosequi. As the Court of Appeal aptly observed in Pipe (42), at page 21: "In the judgment of this court, it is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect and about whom the jury must be warned in the recognised way. It is quite another to call a man who is not only an accomplice, but is an accomplice against whom proceedings have been brought which have not been concluded." F' urther, an accomplice who is granted immunity from prosecution, or further prosecution, by way of a pardon or an indemnity, remains a competent witness for the prosecution. All that can be said about the well recognised practice of granting immunity from prosecution or further prosecution is that it has received condemnation on ethical grounds. It is, however, unnecessary for the court to add to such condemnation or to dissipate it. The critical issue is whether a trial judge should, as a matter of discretion, exclude the evidence of such witness. If, and only if, the inducement is very powerful, the Judge may decide to exercise his discretion in favour of exclusion; but when doing so, he must take into account all the factors, including those affecting the public. It is in 27 the interests of the public that criminals should be brought to justice; and the more serious the crimes, the greater the need for justice to be done. In view of the potent factor as to public interest, it will but rarely happen that a trial judge will decide to exercise his discretion against admission of such evidence. ” Proceedings a nullity On the whole, these proceedings were a nullity. They should be set aside. I, therefore, have to consider whether, now that, the proceedings are a nullity, | should order retrial. Should I not order retrial because the accused persons have served two years already and were in custody since October to 2012 to March 2013 when they were convicted? A retrial should not be ordered where it offers the prosecution a second bite of the cherry. In Kelebetse v The State And Others 2008 2 BLR 256 HC, Dow J, said: “In this respect, there is no difference with the Botswana Supreme Court of Appeal’s decision in, except, as to nullity 'T think I am right in saying that a retrial may only be ordered where the trial is declared a nullity but certainly not in circumstances where a trial court clothed with jurisdictional competence commits misdirections and serious errors which. vitiate its judgment on the merits of the case.’ In Makwapeng v The State //999/ 1 B. L. R. 48, CA (Full Bench), it was held that an appeal court has no power to order a retrial simply because there has been an irregularity in the proceedings at the trial court. It has power to order a retrial only where the proceedings were a nullity through want ofjurisdiction or for any other cause, and not otherwise. ” Dow J continued; “A principle has been established that even where the trial is declared a nullity, a retrial may not be the proper order to make, if for some other reasons, undue prejudice would be meted out to the accused. A relevant consideration, in this regard, might be the length of time an accused has already served.” 28 In Botswana retrial was not ordered in Mosala and others v The State [1996] B. L. R. 978 the appellants were in custody for around four years and trial dragged on for several years; in Maposa v The State [2006] 2 B. L. R. 327 the appellant served three years and eight months of his sentence. It was therefore, in the circumstances, not appropriate to order a retrial or rehearing of the case. Kelebetse v The State And Others, the appellant, aged 77 and having served part of a five year sentence, Dow J_ granted leave to retry the applicant; the applicant to be called for first appearance by 31 October 2008; the State to serve the applicant with all documents, including witness’ statements, by 29 September2008; and the case to be heard as expeditiously as possible. Dow J further ordered that should the state fail mounting a re-trial against the applicant as the case. I order that the prosecution should persecute the accused to the end and the court below should conclude the process within the next 90 days and failure to do so means the prosecution has abandoned the prosecution. The period served and spent in custody will be considered if the accused persons or anyone of them are convicted. The accused persons should be released on bail without sureties. Made this te April 2015 D. F Miya sulu JUDGE 29