NGULUBE,
D.C.J.:
delivered judgment of the Court.
The
appellant was convicted of the murder of Lamiwe Banda and
sentenced to capital punishment. The particulars alleged that
on
18th
October, 1989, at Chingola Village in Chief Kawaza's area in
Katete District, he murdered the deceased. The prosecution
case
established that the deceased died from traumatic perforation of
her private parts and rectum and the allegation
was that it was
the appellant who inflicted the fatal injuries by violent
insertion of a knobkerrie. There was evidence
from a number of
witnesses that the deceased told them it was Chisoni who had
assaulted her and injured her very badly
including in the private
parts. In particular, PW5 testified that on the fateful day, the
deceased had passed by her house
and told her she was going to
have some beer. A short while later, the deceased came and fell
in her yard and told PW5
that Chisoni had assaulted her and
injured her with a knobkerrie. PW1 was one of those summoned and
the deceased told
him too that it was Chisoni who had injured her
after she had rejected his sexual advances. There was evidence
also from
PW2 who together with PW3 apprehended Chisoni, the
appellant, that twice the appellant escaped and ran away from
them but
was recaptured. PW2 testified that the appellant
admitted that he had killed the deceased and gave the reason that
she
had refused to have sexual intercourse with him. There was,
in addition, a full confession recorded by PW7, a police officer,
and witnessed by PW6, a civilian, who happened to be at the
police station to report another matter altogether. The warn
and
caution statement was admitted at first without any objection
but when allegations of assaults and inducements were
made during
the defence case, the learned trial judge correctly held a
belated trial within the trial and still ruled in
favour of
admitting the statement. In the course of dealing with the warn
and caution statement, the learned counsel then
acting for the
appellant disclosed to the Court that he was surprised by the
allegation of involuntariness being raised
by the accused since
his earlier instructions were that it was a free and voluntary
statement and counsel gave as his opinion
that the confession was
voluntary. The learned trial judge in his judgment explicitly
relied quite heavily on defending
counsel's statements from the
Bar as fortifying his finding on the question of voluntariness an
consequent admissibility
of the statement.
The
first ground of appeal attacked the finding that the warn and
caution statement was voluntary while the second ground
attacked
the admission of the same statement on the basis of unfortunate
remarks from the Bar by the defending counsel.
In relation to
the first limb, Mr
Munthali
relied on the evidence of PW5 who testified that he did not hear
any warn and caution actually being administered and that
at
first the appellant was reluctant to speak and only did so when
PW7 persisted. The objection raised by the defence was
based on
alleged assaults and these
p72
were
discounted after the learned trial judge found on an issue of
credibility that PWs 6 and 7 were to be believed. We
can find
nothing wrong with that determination. However, the complaint
concerning the absence of any actual administration
of the warn
and caution, although it was written at the top of of the
statement, was well taken having regard to the evidence
of PW6.
In terms of Shamwana
and Others v The People
[1] the failure to administer a warn and caution raises a
rebuttable presumption of involuntariness and unfairness and
it
is for the prosecution to advance an explanation acceptable to
the Court for the breach of the relevant judge's rule
if the
Court is to exercise its discretion in favour of admission. No
explanation is available in this case where PW7
took the
position that he had administered a warn and caution while PW6
contradicted this. There is yet another reason
why we should
uphold Mr
Munthali's
objection to the warn and caution statement. This relates to the
second ground of appeal which attacked heavy reliance
placed by
the learned trial judge on the defence counsel's damaging
statements from the Bar. In note 11 of para.1137 of
Halsbury's,
4th ed., vol. 3, the learned authors suggest that where a
confession of guilt is made to counsel before trial, he could
decline to take up the defence of the case; where a confession
made to him during trial does not debar him from testing
the
prosecution case to the fault and setting up available defences
so long as he does not set up an affirmative case inconsistent
with the confession. The discussion at para. 1195 of the same
volume of Halsbury's
underlines the duty of non-disclosure by counsel of information
confided in him by his client which counsel is not entitled
to
communicate to anyone else if it would be to the detriment of his
client. We agree with these observations. In this
case, the
stance taken by defending counsel, hostile as it was to the
accused's interests, not only put the appellant in
a fix, as the
saying goes, but also resulted in actual prejudice when the
learned trial judge expressed satisfaction that,
because his own
lawyer had said so, the confession statement recorded by PW7 must
have been free and voluntary and the
objections raised by the
appellant had to be dismissed. We do not see how the appellant's
challenge to the admission of
his warn and caution statement can
be said to have received fair consideration when defending
counsel made damaging statements,
contrary to his duties to the
client. The grounds in this respect are upheld and the
statement recorded by PW7 will
be disregarded for the purposes of
this judgment.
Mr
Munthali
sought to argue that the learned trial judge did not rely on any
other evidence and that we should not consider such other
evidence. On the contrary, as Mr Lwali
pointed out, there was other evidence which the learned trial
judge accepted. This consisted of the statements made by
the
deceased to PWs 1 and 5 and the confession made to PW2, a
civilian who had apprehended the appellant and against whom
there
was no suggestion of any impropriety. In relation to PW5, to whom
the deceased made a report immediately after the
indicent, and
PW1, who was told the same things later that day, Mr Lwali
submitted that their evidence was admissible as res
gestae
on the grounds which were fully discussed by Cullinan, J., as he
then was, in The
People v John Ng'uni [2].
He submitted that there was no possibility in this case that at
the time when the deceased spoke to the witnesses she
could have
distorted the
p73
account
or concocted a story. We respectfully agree with the decision in
Ng'uni
that
evidence of a statement made by a person who is not called as a
witness (in this case the deceased) may be admitted
as part of
the res
gestae
and can be treated as an exception to the hearsay rule provided
it was made in such conditions of involvement or pressure
as to
exclude the possibility of concoction or distortion to the
advantage of the maker or to the disadvantage of the
accused. The
tests discussed in
Ng'uni
were fully met here and the evidence of what the deceased said
was properly admitted. It is not correct, as Mr
Munthali suggested,
that the accused in
Ng'uni
was acquitted on the rejection of this type of evidence; he was
acquitted because the eyewitnesses who purported to repeat
what
the deceased said were themselves not credible and appeared
anxious to conceal the presence of and the roles played
by some
members of their family whom the accused had implicated. In the
case at hand, no such adverse finding on credibility
was made or
could be made against PWs 1 and 5. What is more, there was
nothing else in Ng'uni
to support the evidence of the suspect witnesses as to the words
allegedly uttered by the deceased there implicating the
accused,
while in this case there was the evidence of PW2 to whom this
appellant confessed.
We
are satisfied that even had the learned trial judge excluded the
warn and caution statement recorded by PW7, he must
have
convicted in any event on the remainder of the evidence.
The
appeal is dismissed. We have nothing to comment on the mandatory
sentence.
Appeal
dismissed.
|
|
PDF format
RTF format