Melody Chibuye v The People (HNA 218/1970) [1970] ZMHC 8 (16 October 1970)

MELODY CHIBUYE v THE PEOPLE (1970) ZR 28 (HC) HIGH COURT CHOMBA AGJ 16th OCTOBER 1970 I HNA 218/1970 45 Flynote Evidence - Accused's previous bad character - When to admit - Criminal Procedure Code, s. 148 (f) - Discretion of court to exclude such evidence where its prejudicial effect outweighs its evidential value. 1970 ZR p29 CHOMBA Ag J Headnote The appellant was convicted of theft and sentenced to eighteen months' imprisonment with hard labour. Under cross - examination the appellant was asked questions which elicited the facts that during the two months preceding his trial he had been in prison and that he had been released from prison only two days prior to his arrest in connection 5 with the present case, that he had previously been in gaol for theft, and a denial that he was a habitual criminal. The appellant appealed against conviction. Held: I (i) Under s. 148 (f) of the Criminal Procedure Code questions 10 relating to the accused's previous committals and convictions could only be admitted in evidence where: ■ (i) it can be proved that his guilt in those offences show that he is guilty of the present offences; (ii) where the good character of the prosecution witness has 15 been put in issue; and ■ (iii) where the accused wants to establish his good character. (ii) It was wrong for the prosecutor to cross - examine the appellant as to his character since the prejudicial effect of the evidence extracted outweighed its evidential value. The trial magistrate 20 ought to have refused the cross - examination or to have informed the appellant of his right to refuse to answer those questions. ■ Case cited: (1) Harris v Director of Public Prosecutions, [1952] AC 694; 36 Cr. App. R 39; [1952] 1 I All ER 1044; 116 JP 248. 25 Legislation referred to: Criminal Procedure Code, 1965 (Cap. 7), s. 148 (f). Appellant in person. D M Lewanika, Senior State Advocate, for the respondent. Judgment Chomba Ag J: The appellant was charged with the theft from 30 ZCBC shop, Kitwe of one underpant valued at K1.99. He was sentenced to eighteen months' imprisonment with hard labour. He now appeals against conviction only. I find it unnecessary to review his grounds of appeal because I find no merit in them. Despite this however, I feel that the conviction here cannot 35 be sustained. The appellant, like the prosecution witnesses, gave evidence on oath. The case before the trial court fell to be resolved on pure fact, no points of law having been involved. While the prosecution witnesses, particularly the security guard who claimed to have I seen the appellant pilfer from the 40 ■ ■ 1970 ZR p30 CHOMBA Ag J shop, strove to satisfy the court of the appellant's guilt, appellant strenuously disputed what they said. The main issue before the magistrate so far as the solution of the case was concerned was that of credibility. Indeed in his judgment the magistrate said that he believed the testimony 5 against the appellant and rejected the evidence of the appellant. I ■ ■ I notice from the record of proceedings that under cross - examination the appellant was asked questions which elicited the facts that during the two months preceding his trial he had been in prison and that he had been released from prison only two days prior to his arrest in connection with the present case; that he had previously been in gaol for theft; and a denial that he was a habitual criminal. By s. 148 (f) of the Criminal Procedure Code - I shall refer only to those parts of it that are relevant to the present case - a testifying accused shall not be asked, and if he is asked, he shall not be required to answer, 15 questions tending to prove that he has committed or been convicted of any offences other than the offence wherewith he is charged unless (i) proof that he has been guilty of such other offences tends to show that himself or through his advocate impugned, by cross - examination or in his evidence, the good character of prosecution witnesses or he has in a similar manner 20 sought to establish his own good character. Moreover, even where evidence of the accused's bad character is admissible, the court has a discretion to exclude it if its prejudicial effect outweighs its probative value: Harris v Director of Public Prosecutions (1). In the instant case the record of proceedings does not disclose the fact 25 that the appellant either gave evidence of his own good character or that he attacked the good character of prosecution witnesses so as to lay himself open to cross - examination as to his own bad character. Again the damaging character evidence he gave of himself can hardly be said to have had the tendency of showing that he was guilty of the present case. The 30 evidence of bad character elicited from the appellant might have been helpful to the prosecution if it had been aimed at establishing similar facts or to show that the modus operandi employed in committing the past offences was the same as that used in perpetrating the offence wherewith he was charged. As I have observed earlier that evidence had no such 35 tendency. In the result I come to the conclusion that it was wrong to allow the Public Prosecutor to cross - examine the appellant as to his (appellant's) character because the prejudicial effect of the evidence thus extracted from the appellant outweighed its evidential value. The trial magistrate ought to have stopped that line of cross - examination, or to have informed 40 the appellant of his right to refuse to answer questions in that vein. In dealing with the question of credibility, the magistrate did not, explicitly or otherwise, state that the premature disclosure of the accused's bad character, namely his previous convictions, did not influence his judgment to the detriment of the appellant. It may well be that in the 45 absence of such detrimental evidence vis-à-vis the accused, the magistrate might have either believed the appellant or might have entertained a ■ ■ ■ ■ ■ CHOMBA Ag J reasonable doubt. For this reason I cannot uphold his verdict. I allow the appeal and quash the conviction. The sentence is set aside and I order the immediate release of the appellant. Appeal allowed 1970 ZR p31