Chapter 1

STRUCTURE OF THE COURTS

Introduction

Prior to 1995, April 1, Malawi had a dual legal system, the High Court system and the
Traditional Courts system. These two systems were mutually exclusive although they,
generally, administered the same law.1

Following the 1994 Constitution of Malawi, s. 103 (2) gave the Judiciary jurisdiction
over all issues of a judicial nature with authority to decide whether or not an issue was
within its jurisdiction. This section also provided that there shall be no courts of superior
or concurrent jurisdiction with the Supreme court of Appeal or the High court. Although
the Regional traditional Courts and the National Traditional Court of Appeal, which had
concurrent jurisdiction with the High Court and the Supreme Court of Appeal, had
already been abolished by an Act of Parliament, the new Constitution effectively did not
give room for the existence of Traditional Courts as they were constituted by the
Traditional Courts Act.2

From 1994, the Judiciary consulted with the Ministry of Justice and drew up the
integration document. On April 1, 1995, all Traditional Courts were integrated into the
judiciary.

During the process of integration, the Judiciary and the Ministry of Justice having regard
to s. 204 of the 1994 Constitution, renamed the Traditional Courts into the 1 st, 2nd, 3rd and
4th Grade Magistrates, and District Civil Appeal Court, using s.204 (1) which gave the
Registrar of the High Court power to make directions. The other subsections were subject
to an act of Parliament. Consequent to this, there came into existence a new structure of
courts in Malawi.3

1
Newman’s Manual p. 6
2
Although s. 110 (3) provides that Parliament may make provision for Local or traditional Courts – their
jurisdiction was to be prescribed by parliament and not by a Minister by warrant
3
See Figure 1
 THE JUDICIARY AND COURT STRUCTURE

MSCA

HIGH COURT
REGISTRAR

RM FGM SGM 3RDGM 4THGM OTHER TRIBUNALS

CRM
PRM Criminal NCT
Appeals Civil
SRM Appeals OMBUDSMAN

3RDGM 4THGM
The process of reviewing the Traditional Courts Act and the Courts Act is left in the
hands of the Law commission on Criminal Justice. There have, however, been
enactments to streamline the court operation – proving for the 4 th Grade Magistrate,4
Subordinate Courts (Small Claims Procedure) Rules, 5 granting magistrates jurisdiction
over customary marriages,6 enhancing the jurisdiction of the Magistrate Court.7

As a result of the constitutional change and the integration, we now have one legal
system – under the Judiciary. We have the Subordinate Courts, the High court and the
Supreme Court of Appeal: s. 110, 1. 105 and s. 104 respectively. Although the Industrial
Relations Court and the Local or Traditional Courts are subordinate to the High Court,
they will not be discussed, as they do not fall under the ambit of Criminal Procedure, and
he latter have not been established respectively.

NB: at least now, they have been as of 9/03/04

Jurisdiction and Composition of Courts

Before one can take up any matter to court, one must be aware of the jurisdiction of that
court. Jurisdiction can be defined in many ways. Put simply, it defines the power of the
court as to what matter it can entertain and where it can sit. Jurisdiction may be defined in
terms of the type of:

(a) cases to be heard;

(b) amount of value of property in dispute;

(c) the quantum of punishment;

(d) where the offence was committed; and

(e) where the court can sit

Jurisdiction, therefore, is the power given to the court by law to act in a particular
manner. Generally speaking, the court does not have any powers over and above any
other citizen: therefore, it has no authority to act as it pleases. At all times the court must
be able to justify its judicial action by pointing to a law which allows it to act in a certain
way and demonstrate that it has acted within its powers.

We shall dwell in more detail on jurisdiction of the court as we look at each category.

Territorial Jurisdiction

4
Act No. 19 of 1995; see s. 33 – Courts Act.
5
Made by the Chief Justice under s. 58 of the Courts Act
6
Act No. 1 of 2000
7
ibid
CP&EC Section 66 gives general authority to the court to try any person who is in
Malawi for an offence committed within the territorial borders of this court or partly
within or partly without, or which by law may be dealt by it. The gist of this section is
that the courts have no power, ordinarily, to try offences which have been committed
wholly outside the territorial borders of Malawi. Any offence wholly committed outside
the territorial borders can only be tried if there is a specific law that allows the court to try
it.8

By legal fiction, the territorial border of Malawi also extends to aeroplanes and sea-
fairing vessels, registered in Malawi that are outside the Malawi airspace or territorial
waters. It also extends to Embassies or High Commissions.

Local Jurisdiction

As we have seen, there are many courts. Once an offence has been committed, the next
question is, in which court should prosecution be had? Section 69 gives the local
jurisdiction of the courts: that the offence shall be tried by the subordinate court nearest
to the place where the offence took place or where the accused is apprehended or is in
custody, or has appeared in answer to a summons charging the offence.9

The decision to prosecute, where and in which court, is made by the State. 10 The accused
person does not have a right to elect in which court he has to appear, although he has a
right to challenge the jurisdiction of that court.11

It is important to note that the CP & EC applies to both the Subordinate Courts and the
High Court, but some parts thereof are exclusive. One must always check applicability of
its provision when applying this Code.

Subordinate Courts

The Constitution (1994) stipulates that there shall be established by an Act of Parliament
courts subordinate to the High Court. 12 The Constitution provides for subordinate courts
presided over by professional or lay magistrates, the Industrial Relations court and Local
or traditional Courts to be presided over by lay persons or chiefs. 13 As was said earlier,
we shall not deal with the Industrial Relations court and the Local or Traditional Court.
We shall only deal with Subordinate Courts as envisaged by s. 110 (1) of the
Constitution.

8
S. 331 of the penal code. Receiving or bringing property dishonestly acquired outside Malawi.
9
S. 69 (b)
10
The Director of Public Prosecutions, the State Advocate or Police Public Prosecutors or other prosecution
agencies authorized by the DPP, like the Anti-Corruption Bureau, the Malawi Revenue Authority.
11
DPP v Mtegha 7 MLR 135
12
S. 110 of the Constitution
13
S. 110 (2) and (3) of the Constitution
Since s. 110 (1) of the Constitution provides for Subordinate Courts to be presided over
by Magistrates, the Act that establishes courts is the Courts Act (Cap 3:02) of the Laws of
Malawi s. 33 thereof provides that:

“There are hereby established in Malawi the following courts subordinate to the
High Court:

(a) Courts of Resident Magistrate;

(b) Courts of Magistrate of the First Grade;
(c) Courts of Magistrate of the Second Grade;
(d) Courts of Magistrate of the Third Grade; and
(e) Courts of Magistrate of the Fourth Grade.”

Section 33 of the Courts Act is clear, in that it establishes courts, not a court meaning,
several courts. Notwithstanding that the section does not provide for different tiers of
Resident Magistrate Courts, there are currently four tiers of such courts: The Chief
Resident Magistrates, the Principal Resident Magistrate, the Senior Resident Magistrate
and the Resident Magistrate. There are, therefore, four tiers of Resident Magistrates and
four tiers of graded Magistrates. The Resident Magistrate Courts are presided over by
lawyers and the graded Magistrate Courts by lay people. There is no legal basis for this
arrangement. Section 34 (1) of the Courts Act does not require a Resident Magistrate to
be a lawyer. It only stipulates that he is a higher grade magistrate than the first Grade
Magistrate: s. 34 (3).

Section 35 of the Courts Act provides that:

“Subject to any written law for the time being in force, the Court of a
Magistrate shall exercise its jurisdiction throughout Malawi.”

In essence, this section authorises a Magistrate Court to exercise its jurisdiction in any
part of the country. As long as the court is properly constituted and the trial is regularly
conducted, the decision of that court cannot be challenged on grounds that it was not
presided over by the magistrates for that court or part of the country. The restriction of
magistrates to particular districts is, therefore, administrative and not statutory.

The criminal jurisdiction of Magistrates Courts is provided for in s. 58 of the Courts Act
which provides that:

“In exercise of their criminal jurisdictions the powers of courts of

magistrates shall be as provided for in this Act, in the Criminal Procedure
and Evidence Code and in any other written law.”

Although the Courts Act and the Criminal Procedure and Evidence Code are specifically
mentioned, one must also look at other statutes to determine the magistrate courts’
jurisdiction. As we have seen earlier, the local jurisdiction of the courts is provided for
under s. 69 of the Criminal Procedure and evidence Code. This must be borne in mind as
to where the trial will be held in any particular case.

The general jurisdiction of the Magistrate Courts is provided in s. 13 of the CP & EC as

follows:

“(1) A Resident Magistrate’s Court and any court of the magistrate of the
First Grade or Second Grade may try any offence under the Penal code or
any other law than –

(a) offences under section 38,(Treason) 39,(Concealment of treason)

208 (Manslaughter) and 209 (Murder) of the Penal code.

(b) attempts to commit or aiding, abetting, counselling or procuring

the commission of any of the offences specified in paragraph (a)

(2) A Court of a Magistrate of the Third Grade may try any offence
specified in the Second Schedule.”

The jurisdiction of the fourth Grade Magistrate as to offences is generally the same as
that of a Magistrate of the third Grade; subject to the maximum penalty, it may pass
under s. 14 (3).

The general jurisdiction of the Courts of Magistrates, however, is limited by s. 14 of the

CP & EC which prescribes the sentencing powers of the Courts. In essence, therefore, the
“criminal jurisdiction” of the Magistrate Courts is determined by s. 14 of the CP & EC, as
follows:

(a) Resident Magistrate Court - 21 years

(b) First Grade Magistrate Court - 14 years
(c) Second Grade Magistrate Court - 10years
(d) Third Grade Magistrate Court - 3 years
(e) Fourth Grade Magistrate Court - 1 year

Further to this, the courts’ criminal jurisdiction to impose fines will be subject to s. 14 of
the CP & EC and to the amounts prescribed in the particular offence charged and s. 29 of
the Penal code.

It should be noted, however, that notwithstanding the powers of each court, any
magistrate may sit in and constitute a court of a lesser grade than himself: s. 34 (2). The
converse is that any court of a lesser grade may try any case that it has jurisdiction to try
and remit the same for a higher sentence than it has jurisdiction to pass to a court of a
higher grade: s. 14 (5) of CP & EC.
Although the Magistrate Courts can hear any case as determined by s. 13 of CP & EC,
there are certain offences which can only be prosecuted with the fiat of the Director of
Public Prosecutions.14 One should, therefore, always examine the charging section and
ensure that the court has jurisdiction. Offences that require the DPP’s fiat are those under
s. 51 and s. 53 (2) on sedition, ss. 65 and 77 on unlawful societies, ss. 93, 94 and 95 on
abuse of office, incest by male or females – ss. 157, 158 and 160 on obscene matters, s.
179 on corrupt practices – ss. 392, 396, 397, 398 and 399 of the Penal Code. The consent
of the DPP to prosecute would normally be in writing.15

Constitution of the Courts

The constitution of the Courts of Magistrate is provided for under s. 34 of the Courts Act.
This section provides that the Magistrate Courts shall consist of a fit and proper person.
These Courts, therefore, are presided over by one person. Section 34, notwithstanding the
appointment of the Magistrate, is now according to s. 111 (3) of the Constitution. They
are appointed by the Chief Justice on the recommendation of the Judicial Service
Commission and not by the President.

District Civil Appeal Court

The District Civil Appeal Court is an intermediate appellate court in respect of civil
matters from the Third and fourth Grade Magistrate Courts. It is still an anomaly from the
Traditional court system which was saved in terms of s. 204 (4) of the Constitution
pending the realignment of the Courts system. This Court consists of three Magistrates
from within the district, not being any from whom the appeal originates. The constitution
of the court is determined by the Magistrate responsible for that particular district.

The High Court

The High Court is created under s. 108 of the Constitution:

“There shall be a High Court for the Republic which shall have unlimited
original jurisdiction to hear and determine any civil or criminal
proceedings under any law.”

Further to this, the High Court also has original jurisdiction to review any law, action or
decision of the Government for uniformity with the Constitution. Its jurisdiction and
power are as provided by the Constitution or any other law.

Under s. 7 of the CP & EC, the High Court may try any offence under the Penal code,
subject to the other provisions of the Code. Section 67 of the Code provides that the High
Court may inquire into or try any offence subject to its jurisdiction. The generality of this
section, however, is qualified by the proviso thereto, that no criminal case shall be
brought before the High Court unless the same has been previously investigated into by a
14
Can [1976] QB 496 @ 502 (c).
Blackstone’s Criminal Practice, 1995 par. D. 1.85.
The issue may relate to public police national security or relations with other countries.
15
ibid
subordinate court. This means that the accused must be committed to the High Court after
preliminary trial or summary committal. In effect, therefore, the High Court does not
exercise jurisdiction over all of criminal cases generally. The bulk of criminal cases are,
therefore, brought before the subordinate courts.

Apart from its original jurisdiction, the High Court has appellate and review jurisdictions
over the subordinate courts and other tribunals.16

Constitution of the Court

Section 109 of the Constitution provides:

“The judges of the High Court shall be such number of judges, not being
less than three, as may be prescribed by an Act of Parliament.”

Then s. 5 of the Courts Act provides:

“The High Court shall consist of the Chief Justice and such number of
other judges as the President may, from time to time, appoint.”

There are currently 27 High Court Judges. The judges also have power to sit as
Subordinate Courts: s. 5A of the Courts Act.

Under s. 9 of the Courts Act, the High Court sits on a single judge unless otherwise
provided by the Act or some other Act.

Judges of the High Court are appointed by the president on the recommendation of the
Judicial Service Commission: s. 111 (2) of the Constitution.

The Malawi Supreme Court of Appeal

The Malawi Supreme Court of Appeal is the highest appellate court in the country. It is
established under s. 104 of the Constitution. It has jurisdiction to hear appeals from the
High Court, the Subordinate court and other Tribunals.

The composition of the Supreme Court of Appeal is provided for under s. 105 of the
Constitution. The Justices of Appeal, save for the Chief Justice, 17 are appointed by the
Judicial Service Commission. S. 111 (2) of the Constitution. Section 3 of the Supreme
Court Act stipulates that the Court will consist of the Chief Justice or any other senior
member of the Court and two others. Be that as it may, from the reading of s. 105 (2) of
the Constitution, the Court can sit any number more than three, as long as it is uneven.

16
S. 18 of the Courts Act; Review of the decision of the National compensation Tribunal, Ombudsman, -
s.142 (1), s. 123 (1) of the Constitution – MBC v Ombudsman, Banda v Air Malawi
17
S. 111 (1) of the Constitution – The Chief Justice is appointed by the president, but is confirmed by the
National Assembly by a majority of two-thirds of the members present and voting
In view of the new Constitution: s. 105, it has been argued that the Chief Justice cannot
be a judge of the High Court, as provided under s. 5 of the Courts Act.
 Chapter 2

HOW CRIMINAL PROCEEDINGS ARE INSTITUTED

Section 83 (1) CP&EC

Section 83 (1) prescribes three ways in which criminal proceedings may be instituted. It
reads as follows:

“Proceedings may be instituted –

(a) by making a complaint before a magistrate;

(b) by bringing before a magistrate a person who has been arrested without a
warrant; or

(c) by a public prosecutor or a police officer signing and presenting a

formal charge to a magistrate”

The common mode of instituting criminal proceedings is by a prosecutor presenting the

charge. However, the first two modes provide special procedures which are within the
province of the magistrate.

A complaint under s. 83 (1) (a) can be made by any person who believes from reasonable
cause that an offence has been committed. Upon receipt of the complaint, the magistrate
is required to examine the complainant under oath and the substance of the examination
must be reduced into writing and be signed by the magistrate and the complainant.

S. 83 (1) After taking down the complaint, the magistrate, if he has any reason to doubt
the truth thereof, may either inquire into the case himself or direct the police to inquire
into the case to establish the truth or falsehood of the complaint. If, after the inquiry, the
magistrate finds that there are no sufficient reasons to proceed with the case, he may
dismiss the complaint and must record his reasons for such dismissal. However, if the
magistrate thinks that there are sufficient grounds for proceeding after the complaint or
after any person arrested without warrant has been brought before him: s. 83 (1) (b). He
shall forthwith draw up and sign a formal charge containing a statement of the offence
with which the accused is charged.

After the formal charge has been drawn up by the magistrate, it is within his discretion to
issue a summons or warrant of arrest to compel the attendance of the accused person
before a court having jurisdiction to try that offence. The form and content of the
summons are governed by ss. 85 and 96 of the CP & EC and these are according to Form
VI and Form IX of the Criminal Procedure (Forms) Notice of CP & EC.
The case must be registered in the Criminal Causes Register when the summons or
warrant is issued. It is at this stage that the criminal proceedings are said to be instituted
against the accused person.

The Charge

From s. 83 (1) we have seen that a charge can be drawn up by the magistrate, a public
prosecutor or a police officer.

What is a charge?

A charge is a written or printed accusation of a crime made by the State against one or
more persons. The charge sheet becomes a charge when it has been signed by the proper
court officers in accordance with ss. 83 and 84 of the CP & EC. Where the charge is not
so signed, the proceedings will be held to be a nullity.

A criminal trial cannot be instituted until there is a valid charge to which the accused can
plead. If the charge is invalid, then all the proceedings will be a nullity notwithstanding a
plea of guilty. However, not every defect in a charge would render the charge invalid.

Section 126 of the Criminal Procedure and Evidence Code states that:

“Every charge sheet shall contain, and shall be sufficient if it contains, a

statement of the specific offence or offences with which the accused is
charged, together with such particulars as may be necessary for giving
reasonable information as to the nature of the offence charged.”

The charge can basically be broken into four parts: the commencement, the statement of
offence, the particulars of the offence and validation.

1. The Commencement

The commencement will cite the particulars of the court, venue, case number and
particulars of the accused.
 RESIDENT MAGISTRATE

In the …………………………………………………… Court at …………………….

Grade Subordinate

Case No. …………………… of 20 …………

SUMMONS/CHARGE SHEET

ACCUSED

Name: …………………………………………….. Tribe: ………………

Sex: ……………………………………… Village: ……………………

Age: ………………………………………………..Chief and District:

………………………………………

To: …………………………………………………………… above-named.

NB: This gives information as to the court which has jurisdiction over that offender
and offence and also the venue of the court.

2. Statement of Offence

Section 128 (a) of CP & EC describes what a statement of offence is:

(i) a count of a charge shall commence with a statement of offence

charged, called the statement of offence;

(ii) the statement of the offence shall describe the offence shortly in
ordinary language …. And without necessarily stating all essential
elements of the offence, and if the offence charged is one created by
written law, shall contain a reference to the section, regulation by-law
or rule of written law creating the offence.

The statement of offence is in the following form:

 FIRST COUNT

STATEMENT OF OFFENCE

Theft, contrary to s. 278 of the Penal Code.

(If the charge contains only one count; the words “first count” should be omitted)

Where the offence created has aggravated forms which are specifically provided for, the
section creating the offence must be cited as read with the section providing for the
enhanced punishment. For example, theft of cattle will be “theft of cattle, contrary to
section 278 as read with section 281 of the Penal Code.” For a section that creates more
than one offence, the particular sub-section or paragraph that the offence is charged must
be cited, so that it is sufficiently clear to the accused what offence (charge?) he will be
required to answer.

The section creating the offence, defining it and providing the punishment may be
different. There is no general rule as to which section should be used when drafting the
statement of offence, although in practice the section providing the punishment tends to
be preferred than the definition section or section creating the offence. 18 The drafter of
charges, therefore, will invariably depend on precedent.

3. Particulars of Offence

Section 128 (a) (iii) describes particulars of offence as:

“after the statement of offence, particulars of such offence shall be set out
in ordinary language, giving reasonable information as to the commission
of the offence and avoiding as far as possible the use of technical terms:

Provided that where any rule of law of any Act limits the particulars of an
offence which are required to be given in a charge, nothing in this
paragraph shall require any more particulars to be given than those so
required.”

Where the charge contains more than one count: s. 127 (2), s. 128 (v), the counts shall be
numbered consecutively. The particulars of the offence should be stated immediately
below the statement of offences, as follows:

PARTICULARS OF OFFENCE

18
Theft is under s. 278 of the Penal Code, Rape is under s. 133 of the Penal Code
 “Julius Damwe on the 25th day of March, 1998, at Tate village in the
district of Salima, stole two bags of groundnuts valued at K2,000.00. The
property of John Timwere.”

The particulars of the offence will allege the actus reas and mens rea. It will therefore,
generally follow the format of who is alleged to have committed the offence (they may be
more than one), when he committed the offence, where he committed the offence, what
offence he committed (or what he did) and against whom the offence was committed.

The drafting of the particulars of offence must avoid any information that is superfluous.
There, exact time or age of persons involved should not be specified unless they form an
element of the offence.19

4. Validation

At the bottom the charge sheet will have the particulars of the police station or office
conducting the prosecution, the date, the signature of the prosecutor and the magistrate as
follows:

…………………………. ………………………
Police Station Prosecutor

………………………….. ………………………
Date Magistrate

NB: The charge becomes a proper charge as soon as it is dated and signed by the two
officers.

Drafting of a charge sheet requires a lot of care and attention and often requires a great
amount of skill. It is usually great folly on the part of the magistrate to think of charges in
terms of simple offences. Each offence is new challenge. Always check the charge
against the offence under which it is brought, to avoid unnecessary errors.

It is the duty of the court to emphasise the need for a proper charge before plea is taken.
The general rule is that it shall be sufficient to describe any place, time, thing, matter, act
or omission whatsoever to which it is necessary to refer in the charge, in ordinary
language in such a manner as to indicate with reasonable clearness the place, time, thing,
matter act or omission referred to.” – section 128 (f). In this regard, attention must be had
to the whole of s. 128, which prescribes the rules for framing charges.

AMENDING THE CHARGE

19
Burglary must allege it was at night, defilement – that the girl was under 13 years of age.
Section 151 (1) of the Criminal procedure and Evidence Code provides that:

“every objection to any charge for any formal defect on the face thereof
shall be taken immediately after the charge has been read over to the
accused person and not later.”

The responsibility for the correctness of the charge lies with the prosecution, although it
is the duty of the court to ensure that the charge is correct. This subsection, however, bars
the defence from subsequently challenging the validity of the charge because of a defect
on the fact of it which they should have objected to at the very beginning.

Subsection 2 provides that:

“(2) Where at any stage of the trial before the court complies with s. 254,
or calls on the accused for his defence under s. 313, as the case may be, it
appears to the court –

(a) that the charge is defective either in substance or form;

(b) that the evidence discloses an offence other than the offence with
which the accused is charged;

(c) that the accused desires to plead guilty to an offence other than the
offence with which he is charged, the court may make such order for
the alteration of the charge, either by way of amendment of the charge
or by the substitution or addition of a new charge as it thinks
necessary to make in the circumstances of the case, unless, having
regard to the merits of the case, such amendment cannot be made
without injustice.”

This means that an alteration to the charge, whether by amendment, substitution or

addition, can be done at any time before the accused is called upon to give his or her
defence, or before the court makes a ruling of a case to answer, at the discretion of the
magistrate, as long as the magistrate is satisfied that it will not cause injustice to the
accused. The party seeking to alter the charge (usually it is the prosecution) will seek
court’s leave to do so. The court will seek the other side to reply to the request or
application for leave to amend the charge. The subsection, however, anticipates the court
altering the charge, if it is necessary, even when no party applies for leave to do so. If the
court feels that the charge ought to be altered, it should invite the views of both parties,
and particularly the defence, before exercising its discretion to alter the charge. Where
leave to amend the charge has been granted, court may, if satisfied that it is necessary to
do so, allow an adjournment of the case to allow the parties, and particularly the defence,
to consider its position after the amendment and prepare to defend the charge as
amended. This procedure will apply even when the alteration is by way of substitution or
addition of further charges.
How the charge is amended

Where the court grants leave to amend, its decision will be recorded in the case record
and a note will be endorsed on the charge. The part to be amended will be deleted without
obliterating the original wording. The amended part will then be endorse clearly, dated
and signed for by the magistrate. It is necessary not to obliterate the original because it
will allow the reviewing or appeal court to know what the position was before and after
the amendment. If the alteration is by way of substitution by a fresh charge, the amended
(old) charge should be marked “A” and the fresh (substitute) should be marked “B”. This
will again enable the reviewing or appellate court to know what was obtaining before and
after the amendment.

Procedure on Alteration of Charge.

When a charge is altered, whether by way of amendment, substitution or addition of

further charges, the charge will be treated, for purposed of the proceedings, as having
been filed in the amended form; s. 151 (3). The new or amended charge must be read and
explained to the accused person and he must be requested to plead to the charge (s) as
amended. The court should ascertain whether the parties are ready to proceed or not, and
if necessary, will grant accused an adjournment to prepare his defence.

s.151 (8) – if new charge requires consent of the Director of Public Prosecutions, then
such consent must be obtained before proceeding with the trial.

It is not necessary in such circumstances for the court to hear evidence de novo, unless,
the court directs that there be a new trial. If there is no new trial, the accused is entitled,
as of right, to re-call and re-cross-examine all or any of the prosecution witnesses. The
court must inform the accused of this right. An unrepresented accused person may not
appreciate this right, therefore, the magistrate, who is under a duty to assist unrepresented
accused persons, must apply his mind to this and recall the witnesses on behalf of the
accused if he is of the view that they would assist to shed more light on accused’s case.
The prosecution will then be allowed to again re-examine the re-called witnesses.

JOINDER OF OFFENCES AND OFFENDERS

Joinder of offences

Joinder of offences means charging the accused person with more than one offence in the
same charge. This is governed by s. 127 (1) of the Criminal Procedure and evidence
Code. This section reads:

“(1) Any offences, whether felonies or misdemeanours may be charged

together in the same charge if the offences charged are founded on the
same facts or form or are part of, a series of offences of the same or
similar character.”
This section can essentially be broken into three parts: that is, that the offence must –

(a) be founded on the same facts;

(b) form a series of offences of the same or similar character; and

(c) are part of a series of offences of the same or similar character

Offences that may be founded on the same facts are such as driving without a valid
driving licence, which would entail the offence of driving without being covered by a
policy of insurance under the Road Traffic Act.

Offences said to form a series, are committed repeatedly as a pattern and are part of series
if they inevitably follow each other.

For purposes of evidence and judgment, each count in the charge is a separate charge
against an accused person. The court will have to make a separate finding on each count
and convict the offender separately on each count. The court, therefore, must guard
against calling an accused person to answer a count of a different character where the
evidence may prejudice the accused. Subsection (3), however, gives the court discretion
to order separate trial and it reads:

“(3) Where, before trial, or at any state of the trial, the court is of the
opinion that an accused may be embarrassed in his defence by reason of
being charged with more than one offence in the same charge, or that for
any other reason it is desirable to direct that the person should be tried
separately for any one or more offences charged in the charge, the court
may order a separate trial of any count or counts of such charge.”

Though perfectly legal, it would be unfair to call an accused to answer to counts of

distinct offences. The essence of this subsection is that the court can exercise its
discretion with the accused person in mind, that he should not be prejudiced in his case or
embarrassed in his defence.

It should be noted that it is not necessary to add a count for an attempt to commit any of
the offences already charged. S. 152 of the Criminal Procedure and Evidence Code
empowers the court to convict for attempted to commit the offence, although the attempt
is not charged.

Joinder of Offenders

Joinder of offenders means charging several persons in the same count or charge as
having committed an offence or offences. This is governed by s. 127 (4) of the CP & EC.
This subsection states:
 “(4) The following persons maybe joined in one charge and may be tried
together, namely –

(a) persons accused of the same offence committed in the course of the
same transaction;

(b) persons accused of an offence and persons accused of abetment, or an

attempt to commit such offence;

(c) persons accused of more offences than one of the same kind (that is to
say, offences punishable with the same amount of punishment under
the same section of the Penal code or any other written law)
committed by them jointly within a period of twelve months.

(d) Persons accused of different offences committed in the course of the

same transaction.”

The Code further stipulates that persons accused of offences under Chapters XXVI to
XXXI of the Penal code may be joined as offenders under subsection (4) (e) and (f).
Other than these provisions, a conviction cannot stand if evidence shows that each
offence was committed by each accused separately.

This subsection, therefore, stipulates that where several persons commit an offence
together, they may each be charged separately (severally) or all may be charged together
(jointly). The principles that govern joinder of offenders have evolved as a matter of
practice as seen in subsection (4) (a) to (c) of the Code.

It is important to bear in mind that subsection (4) still requires that there should be a
connection between the offenders linking them to the crime charged they committed the
offence (s) in the same transaction, or as aiders mention should be made of subsection (4)
(e) which allows joined of offenders where offences have been committed jointly within
12 months. This requires the prosecution to put all offences jointly committed in one
charge than having several files. This subsection has the same effect as subsection 2
which allows joinder of offences where they “form or are a part of a series”.

The court still has discretional powers to order separate trial of accused charged if it is in
the interest of justice to do so. Separation may be ordered where some evidence against
one accused may not be admissible against the other, or where the prosecution wants to
call an accomplice as a witness. However, there is no rule to order a separate trial so that
the accused should put each other in defence, or whether the evidence of one accused will
be used against co-accused. The court has to use its discretion in such matters, whether
separate trials or not.
Any objection to the charge on account of joinder or misjoinder of offences subject to s.
151 (1) of the CP & EC: that it must be taken immediately a charge is read to the accused
person, not later.

Duplicity

The general rule is that each count of a charge must charge one offence. The description
of each offence charged must be set out separately in each count: s. 127 (2). It is,
therefore, wrong at law to charge more than one distinct offences in one count, whether
cumulatives or alternatives.20 A count that has more than one offence charged is said to
be bad for duplicity.

The rule against duplicity ensures that the accused person is clear of the offence he is
going to answer. It also ensures that the court is clear as to which offence it is required to
return a verdict.

Duplicity may occur where one count alleges more than one offence against a person, or
two distinct offences against two persons, or one charge having distinct offences against
two distinct persons which are misjoinded, or several offences of a similar nature were
committed on different dates but are in one count.

A charge for bad duplicity must be objected to at the reading stage: s. 151 (1) and must
be amended under s. 151 (2), otherwise the trial will be a nullity unless it can be saved
under the principles in s. 3 and s. 5 of the Penal Code, the accused was not prejudiced or
that there was no failure of justice.

Exceptions to Duplicity Rule

The rule against duplicity can be avoided if two distinct offences are charged in different
counts that are pleaded “IN THE ALTERNATIVE”. In such a case the court will make a
finding on the offence that is proved. It will enter a verdict of not guilty on the one not
proved.21

At plea stage, it is curious to note that the prosecution is not obliged to present a “plea of
guilty” on the alternative charge which normally is lesser. It is possible to request the
court to enter a “plea of not guilty” and adduce evidence on the second charge.22

Chapter 3

PRE-TRIAL ISSUES

Open Trial

20
Connecting the charges with “and” or “or”
21
Rep. v Banda and others /R v Mtambalika [1923-60] 1 ALR Mal. 414
22
DPP v Central Africa Co. Ltd. [1971 – 72] ALR Mal. 2. Also Newman’s Manual pp 72 – 73.
The general rule provided for in section 60 of the Courts Act and section 71 of CP & EC
is that in exercise of its jurisdiction, powers and authorities, the proceedings in every
court; subject to the exceptions provided therein, shall be in open court in which the
public generally may have access.

It is further a requirement that all evidence must be given in the presence of the accused
person; s. 162 of CP & EC.

“Except as otherwise expressly provided; all evidence taken in an inquiry

or trial under this code shall be taken in the presence of the accused
person, or where his personal attendance has been dispensed with, in the
presence of his counsel if any.”

There are few situations in the CP & EC which call the court to dispense with the actual
presence of the accused person during inquiry or trial; such as ss. 50 and 93 of the Code
which allow court to dispense with the personal presence of the accused to attend and
show cause why he should not be ordered to keep peace and where accused pleads guilty
in writing, respectively. It is important, however, to note that s. 93 provides that no
magistrate may impose a sentence of imprisonment without option of a fine except in the
presence of the accused person. This recognises that under s. 260, the court has to hear
the accused before it decides on what is the proper sentence.

In essence, therefore, our criminal procedure laws do not provide for trial in absentia.
Note should be taken of s. 203 of the Code which permits the court to take evidence of
witnesses in the absence of the accused person. This procedure, however, is intended to
preserve such evidence as depositions by the said witnesses, in case they die or move out
of the jurisdiction. It is intended that such dispositions facilitate the trial of the absent
accused in the future to and to facilitate trial in absentia.

Parties

We note that for a trial to be conducted there must be a properly constituted court
presided over by the magistrate; there must, however, be a public or private prosecutor to
present the case against the accused on behalf of the State.

Prosecution may be conducted by the DPP, the State Advocates, Public and Private
Prosecutors and Police Officers. Section 99 of the Constitution created an office of the
Director of Public Prosecutions and his powers. Section 100 thereof, however, provides
that the DPP may delegate some of his powers. Other than that, his authority is not
delegable and, in any case, he alone is responsible to the Legal Affairs Committee of
Parliament. The Code provides that the public prosecutor is vested with and entrusted
with the duty to prosecute all crimes under the laws of Malawi: s. 76. He can, however,
delegate some of his power. Prosecutors can be appointed by the Minister or the DPP, but
any person appointed public prosecutor is subject to the express directions of the DPP: s.
79 (3). Persons appointed public prosecutors can appear before any court without any
written authority. However, all other persons may only so appear with the permission of
the court: s. 82.

There must be the accused person who is to stand trial. The accused may be represented
by a legal practitioner of his choice, if he can afford one, or one appointed by the court at
the expense of the State (Legal Aid) as stipulated by s. 42 (2) (f) (v) of the Constitution
and s. 160 of CP & EC. With the abolition and integration of the Traditional Courts, s. 40
of the Legal Aid Act, which barred legal practitioners from representing accused persons
in some cases or courts, is no longer valid, and should not be considered to be
unconstitutional.

Limitation Period

At common law, there is no time limit for commencing proceedings by the State. In all
cases of felonies or misdemeanours, therefore, where no time limited by the statute,
prosecution may be commenced at any length of time after the offence.

Under the Code, the only limitation for commencing trial is placed under s. 261
(amended). The limitation is based on maximum punishment of either, and or fine not
exceeding 50 pounds or imprisonment for three years. Prosecution should commence
within 12 months “of the time when the matter or such charge or complaint arose” unless
longer time is specifically allowed by law. In essence, therefore, such circumstances
prosecution must be had within 12 months from the commission of the offence.

Apart from s. 261 of the Code, therefore, the court has to examine the particular statute
that creates the offence, to determine whether or not it is a time limit on commencing
proceedings.

Transfer of Proceedings

(a) Transfer before Commencement of Proceedings:

The CP & EC does provide for the transfer of cases by subordinate court to another.
Section 73 (1) reads:

“When an accused appears before a subordinate court, the subordinate

court shall; if satisfied it has no jurisdiction to try or inquire into the case,
or may if it is of the opinion that the case should be tried by inquired into
by another subordinate court, direct that the case be adjourned and
transferred to any subordinate court which is competent to try or inquire
into the case.”

This subsection gives rise to two instances where the court can transfer the case: (a) when
satisfied that it has no jurisdiction (b) where it is of the opinion that the case must be tried
by another court. The first instance is mandatory. A court that has no jurisdiction is not a
competent court for the purposes of the subsection and its proceedings will be a nullity.
The second instance is discretional. Being discretional, the court must give its reasons for
forming the opinion that the case be tried by another court. This discretion, therefore, is
judicial and appealable. Under s. 27 of Courts Act (read).

Section 73 (2) empowers the transferring court to direct the accused to appear before the
court before which the matter is transferred at a stated time and place and gives it
discretion on whether to let him to be at large or, remand accused on bail or in custody.
This section gives limit for the adjournment that can be ordered; …. Of a person
remanded on bail, it should not exceed 30 days whereas for those remanded in custody, it
should not exceed 15 days. However, the period depends on what is reasonable in the
circumstances. S. 73 (3) permits the court to transfer any proceedings before it to some
other place. This is common during court circuits, places which have no prison, where the
State has closed its case and the accused remains to give evidence and is in custody. This
is there to expedite the trial.

(b) Transfer after Commencement of Proceedings:

Section 74 governs the procedure of transfer after the inquiry or trial has already
commenced. It requires the magistrate to stay proceedings and submit the case to the
High Court with a brief report. The High Court then will make such order as to the
transfer as it finds necessary. By procedure, therefore, all transfers of cases after trial
commences have to be by the High Court on the case stated by the magistrate. This is one
of the powers of oversight that the High Court has over the subordinate courts. In practice
however, when this has not been followed, the High Court has always examined the case
and if no injustice was occasioned, s. 5 of the CP & EC has been applied. It is, therefore,
important to remember than when ordering transfers, there are two different procedures
to be followed before and after trial commences.

There is no specific procedure provided for the disposal of the accused person following
transfer of the case under s. 74 of the Code. It is safe to assume that the legislature
intends the general provision of s. 250 to apply, whether the accused will be remanded on
bail or in custody.

(c) Continuation of Proceedings before another Magistrate:

Section 165 of the Code provides for the continuation of the case by another magistrate
when the first magistrate ceases to have jurisdiction or following a transfer. The
succeeding magistrate may act on the evidence partly recorded by his predecessor or
himself may re-summon the witnesses, and after recording the reasons the predecessor
ceasing to exercise jurisdiction, re-commence to inquiry or trial. The reason for recording
the reasons why the predecessor ceased exercising jurisdiction is to show that the
succeeding magistrate is conscientiously (dutifully) taking over jurisdiction. Failure to do
so gives the review court the impression that succeeding magistrate did not appreciate the
importance of procedure. Be that as it may, s. 165 provides that unless delay or expense
will be unreasonable caused or incurred succeeding magistrate must re-summon the
witnesses if requested by the accused. You will recall that this procedure is also obtained
where there has been an amendment to the charge. It is provided that the High Court may
set aside the conviction and order a re-trial if it is of the view that the accused was
materially prejudiced by the magistrate acting on the evidence not wholly recorded by
himself. It should be borne in mind that the magistrate who records the evidence of the
witness has a chance to assess the demeanour of the witness and form an opinion as to
whether he is a witness telling the truth or not.

Section 166 of the Code provides the procedure for sentence by another magistrate after
conviction before a magistrate who ceased to have jurisdiction by virtue of transfer order
or otherwise. Although not specifically stated in the section, it will be wise to record why
the preceding magistrate ceased to have jurisdiction.

Adjournment of cases

Adjournment of cases is provided for under s. 250 of the Code. This section empowers
the magistrate to adjourn the case before or during the hearing of the case. The
adjournment should be to a specific time and place which shall be stated in the presence
of the parties or their counsel.

This section makes provision for three situations: (a) where the parties consented, that is,
both sides agree the adjournment can be up to any period not exceeding 90 days (or three
months), (b) where the parties do not consent: this will so apply even where only one
party consents; the adjournment should not exceed 30 days (c) where the accused is in
custody, however, the adjournment should not exceed 15 days. The time runs from the
day next after the order of adjournment.

The magistrate has the discretion to order the accused to be released without security or
on bail or, to be remanded in custody.

Section 250 (2) provides that where s. 250 (1) has not been complied with, this will not
affect the validity of the proceedings. The High Court may make any necessary order for
resumption of the proceedings.

Section 250 should always be contrasted with s. 73 (2) on adjournment and transfer. The
adjournment periods in s. 73 (2) are an exception, otherwise the general rule is that period
of adjournment must comply with s. 250 (1) of the Code.
 Chapter 4

BAIL

Nature of Bail

These are “sureties taken by a person, duly authorised, for the appearance of an accused
person at a certain date and place to answer and be justified by law”. Under our Code,
bail is covered by s. 118 to s. 125.

Under s. 118 the authorised person to take bail are the police officers and courts.

Section 118 (1) of the Code reads as follows:

“When any person, other than a person accused of an offence punishable

with death, is arrested or detained without warrant by a police officer, or
appears or is brought before a court, and is prepared at any time while in
the custody of such police officer or at any stage of the proceedings before
such court to give bail, such person may be released on bail by such police
officer or such court, as the case may be, on a bond, with or without
sureties.”

Bail, therefore, may be granted to an arrested person, a person detained without warrant,
a person who appears before a court or if brought before the court, who is prepared to
give bail. It should be noted, however, that although s 118 (1) appears to put the onus to
seek bail on the accused person, in practice, the authorised persons are obliged to
consider bail whenever the accused is in custody. This is clear from s. 42 (2) (e) of the
constitution, which provides for the right to be released from detention, with or without
bail unless the interests of justice require otherwise. It should be noted, therefore, that
whenever a person is arrested and is in police custody, the police officer in-charge must
decide whether to keep him in custody until he is brought before court within 48 hours or
to release him: see s. 42 (2) (b) of the constitution. Before the new constitutional
provision, however, the police officer in-charge was required to make such a decision
within 24 hours: s. 35 of the Code. If he decides to release him, he must decide whether
to release him unconditionally or on bail. The same is true for the court, if an accused
person is brought before court under s. 83 (1) (b) or appears before court under s. 83 (1)
(c), the court must decide whether to remand him in prison or to release him
unconditionally or on bail.

The 48-Hour Rule

Section 42 (2) (b) of the Constitution reads as follows:

 “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 –

(a) as soon as it is reasonably possible, but not later than 48 hours after
the arrest, or if the period of 48 hours expires outside ordinary court
hours or on a day which is not a court day, the first court day after
such expiry, to be brought before an independent and impartial court
of law to be charged or to be informed of the reason for his or her
further detention, failing which he or she shall be released;”

This provision is the basis of the “48-Hour Rule”. It requires that the arrested or detained
person must be brought before a court of law and be charged. It is not sufficient for the
State to formally charge him or her and not lay a charge before the court with the accused
person. In other words, the State must bring the accused before the court with a charge to
which the accused must plead. If there is no charge, the State must lay information before
the court justifying why that person must be detained further. It is for the court to decide
whether there are sufficient grounds for detaining that person further without a charge.
The court should then adjourn the case in accordance with s. 250 of the CP & EC.

If the State fails to bring the detained person before the court and charge him or her or to
justify why he or she must be detained further, the accused is entitled to be released. At
this point in time, regard must be had to s. 42 (2) (e) to release him with or without bail
and with regard to the interests of justice.

The Bail Bond (s. 119)

Bail must be granted on a bond [s. 118 (1)] with or without sureties. Before any person is
released on bail, he must execute such a bond [s. 119]. The bond will be for such sum of
money as the police officer or court will think sufficient in the circumstances of the case
[s. 119] and should not be excessive [s. 118 (2)], so as to amount to refusal of bail.

The order must state whether this sum of money will be cash deposit or not. If it is a
deposit bond, s. 121 of the Code – where one may instead, deposit some other valuable
property may apply.

The bail bond may be with or without sureties and “may contain such other conditions as
the police officer or court may think fit.”

Sureties

Sureties must be persons with ability to answer for the sum in which they are
bound. Their duty is to ensure that the accused person will attend court or will appear at
the police station on the date or at the place appointed. Who may stand as surety, is
entirely at the court’s discretion. The court, therefore, has to satisfy itself of the
sufficiency of the proposed surety.
The proposed surety has to be examined on oath as to his sufficiency. The court must,
therefore, seek to establish his financial standing, whether he has assets or not, and their
values, his character and if he has had previous convictions. The court may order that
reasonable notice be given to the prosecution or police to enable them to inquire or object
to the sufficiency of the surety. The court should also establish the relationship between
the surety and the accused person. Invariably, the court should ask the surety how he will
pay the sum should the accused abscond. This usually gives a good indication of the
proposed sureties’ liquidity and his understanding of the obligations.

When a person comes forward to stand as surety, the court must explain to him in clear
terms what obligations he is taking on, to ensure he understands them and is prepared to
undertake them. He should also be warned of the consequences, that he will be liable to
pay the sum or forfeit the sum pledged or to imprisonment.

Known criminals, or persons convicted of serious crimes should not be allowed to stand
as sureties. It is not advisable to allow a legal practitioner to stand as surety for his client;
also police officers, prison officers or magistrates and judges save where there is a close
relationship. Persons who will be indemnified by the accused person or are minors should
not be allowed to stand as sureties. However, married women who have separate property
may stand as sureties.

If no surety is forthcoming, the court should remand the accused in custody until sureties
come forth, are examined and accepted as sufficient. The accused or his counsel has to be
called to be present when his sureties are being examined.

Conditions [s. 119]

A person granted bail is under a duty to surrender to custody of the court or police officer
at the time and place stated in the bail bond.

A person whose bail only requires him to surrender to custody at a given place or time is
said to be “unconditional bail”. However, a person granted bail which is subject to any
other requirements is said to be on “conditional bail”.

The requirements to furnish surety or sureties is a condition that is specifically mentioned

in s. 119 of the Code. However, s. 119 does provide that the court or police officer may
impose other conditions as they see fit. These have not been specified in the Code, but
have been developed as a matter of practice.

Conditions are normally imposed to ensure that the accused does surrender to custody,
does not commit offences while on bail, does not interfere with witnesses or the course of
justice and that he or she shall make himself/herself available for any other inquires by
the court. The court, when making its decision to impose conditions need not have
substantial grounds for believing that the events described will happen or not. It is
sufficient if it perceives a real risk that such events will happen or not. The conditions,
therefore, reduce the risk of absconding, committing offences while on bail and minimise
interference with the course of justice.

The usual conditions that courts and police officers impose are:

(a) a conditions that the accused will reside at a particular place or address;

(b) a condition that he shall notify the court or police of any change of address or
place of residence;

(c) a condition to report at the police (daily or at intervals);

(d) curfew;

(e) a condition that the accused shall not go to certain places;

(f) a condition not to contact (in any way) the victim or witnesses; and

(g) a condition to surrender passport and other travel documents.

The list is not exhaustive.

A breach of the conditions of bail may result in the bail being withdrawn.

Principles for Granting Bail

Arrested and detained persons have a constitutional right to be released with or without
bail. Granting of bail, therefore, is the discretion of the court. The court is required to
consider whether it will be in the interest of justice that bail be granted, otherwise it will
refuse bail. Bail should not be withheld merely as a punishment. “The requirements as to
bail are merely to secure the attendance of the accused person at the trial”. The interest of
justice requires that the accused person should –

(a) surrender to custody and take his trial;

(b) not to commit an offence while on bail;

(c) not to interfere with witnesses or the court of justice.

These are the principles on which bail is granted. The court only needs to perceive the
real risk of such events occurring to justify its finding not to grant bail. The perception
should be objective, not subjective. However, should the court make a substantive finding
on the above events, it would bar the accused from re-opening the bail application in the
same trial unless there are substantial changes in the circumstances. If bail is not granted
at the first hearing, the accused is entitled to re-open the bail issue at subsequent hearings
or in the High court. There seems to be no limit to the number of times an accused can re-
open the bail application in any trial. Save that a matter in a subordinate court can only be
referred to the High Court if bail has been refused: s. 118 (5) of the Code.

The following factors have been taken in account by courts when granting bail:

(a) the nature and seriousness of the offence and the nature of the sentence that
would normally be imposed;

(b) the character, antecedents, associations and community ties of the accused;

(c) his ‘record’ for having answered bail in the past; and

(d) the strength of the evidence against him.

These factors are self-explanatory. What the court should bear in mind, however, is that
when coming to its decision, it is basically weighing the probabilities of the first three
factors (which will make the court refuse to grant bail) happening.

It is important that the court should thoroughly consider any objections to bail raised by
the State before deciding whether or not to grant bail.

The nature of offence and sentence expected presupposes that one would weight the risk
of absconding against the risk of a long sentence. Character is relevant, in that persons
who respect the law are more likely to obey it.

Antecedents are relevant to sentence. Community ties are crucial: where one lives, how
long he has lived there, whether he is single or has a wife and family, lives in his own
house, rented house guest house or in a squatter. A person with strong community ties is
likely to be more responsible. An accused with no “fixed abode” may find it easy to
change addresses and will be difficult to trace. An accused who knows the strength of the
evidence against him is more certain of a conviction and most tempted to abscond. This
list is not exhaustive. The court is at liberty to consider any other factor which appears
relevant in the circumstances, taking into account the presumption of innocence.

The court need not grant bail to persons who ought to be in custody for their own safety:
people who commit offences that outrage the community to the extent that the
community may seek revenge, or persons who are already convicted, or where the State
has not had a sufficient time to conduct inquiries. This, however, must be used with
caution, as it can easily be abused. Those who have absconded bail in the same
proceeding should, normally not be re-admitted to bail.
When the bail bond is signed, the person in custody will be released in accordance with s.
120 of the Code.

Section 42 (2) (e) of the Constitution

Section 42 (2) (e) of the constitution has made one big change to the law. It has made bail
a right to any person arrested or detained. This means that those who were excluded in s.
118 (1), that is, persons accused of offences “punishable with death” are now entitled to
bail as of right. Other than this, the general principles remain the same. Granting of bail is
still a matter of discretion for the court.

There have been many decided cases concerning bail, especially in homicide cases before
by the High Court. These authorities differ in approaches and conclusions. The
constitutional provision of the “requirements of the interests of justice” is yet to get a
settled meaning. It is also clear that the courts have relied on the common law approach
of exceptional circumstances and at times public interest. It is best to conclude that the
jurisprudence on this point is still developing. Legal practitioners, as of now, will cite
decisions that are in their favour. The court, therefore, has to weigh the situation and
decide the case on its own merit.

Failure to comply with Bail.

When an accused granted bail fails to comply with the requirements of his bail, the court
has to consider two things. The first is how the court will ensure that the accused attends
court for the remainder of the trial and the second, is how to deal with the accused and his
sureties for the breach of the bail bond.

When the accused fails to surrender to custody, the court may issue a warrant for his
arrest. This procedure is obtaining whether bail was granted by a police officer or the
court. However, if good cause for his absence is shown; for example, the court is
informed that he is ill; the court may adjourn the case to another date and extend his bail.
A warrant of arrest will also be issued whether the accused surrenders to custody, but
leaves the court before his case is called.

These consequences of failure to comply with bail for the accused and his sureties are
that the bond may be forfeited and the sum of money pledged will be recoverable from
the accused and the sureties: section 125 of the Code. The court will record the proof for
such non-compliance and summon any person bound by the bail bond. If such person
absconded, the court will issue a warrant for attachment and sale of the movable property
of such person. If the money cannot be realised, the court may order the imprisonment of
such person for up to six months.

The court has the discretion to remit any portion of the penalty: section 125 (4) of the
Code. This will usually be so when court receives evidence that he persons bound took
reasonable steps to ensure that the accused should not abscond or where, for good cause,
the court finds that he person bound has limited means. This power is discretionary and
the court must give reasons which must be recorded for exercising such discretion.

All orders made by the magistrate under s. 125 of the code are appealable and may be
reviewed by the High Court.

Granting of bail is a serious judicial discretion. The magistrate must always carefully
balance the right of the accused person, who is presumed innocent until proved guilty,
against the rights of the society and the interest of justice. Unweighted exercise of this
discretion can easily undermine public confidence in criminal justice system and lead to
self-help (mob justice).
 Chapter 5

TRIAL PROCEDURE

Taking the Plea

The first page in the case record is the Charge Sheet. The second one is the Plea Sheet or
Form. This is usually printed and contains standard information, as follows:

1. Date: …………………………………………………………………….

2. Criminal Case Number: ……………………………………………….

3. In the Court of the ……………………………………………............

4. Sitting At: …………………………………………………………………

5. Before: …………………………………………………………………..

6. Official Interpreter: …………………………………………………….

7. Public Prosecutor: ……………………………………………………..

8. Accused Person (s): …………………………………………………..

9. Unrepresented/Represented by: ………………………………….

Charge (s) read over and explained to the accused person (s) and accused person (s) state
(s) as follows in reply to the charge (s):

……………………………………………………………………………………………..

This information is filled in by the clerk and in essence gives us the date the trial
commences, the cause number, the court, venue and the coram of the court. Before the
accused is called upon to plead to the charge (s), which charge (s) is and as contained in
the charge sheet, it is advisable that court should ascertain his particulars: his names, age
and address. It is not unusually to have the wrong person standing in the dock at the time
of plea. Much time may be wasted if this is not ascertained immediately.

The age of the accused person is very important, as it determines what type of procedure
to follow – whether one is a juvenile or not. The recording of the offence on the charge
sheet by the prosecutor is administrative, but the recording of the age by the court is a
judicial matter. If the accused person is unsure of his age, or when he was born, and the
court suspects that he is a juvenile, he must be sent for medical examination to ascertain
his apparent age. If he is an adult, the court should record him as an adult and then
endorse his apparent age in the opinion of the court. For example, “Adult –
approximately 55 years old”. This is important, not only for purposes of determining the
procedure, but also assessing the accused’s evidence and demeanour and for the court’s
decision, if sentencing the accused becomes necessary.

The common mode of recording the ascertainment of the particulars of the accused is by
ticking the particulars as recorded on the charge sheet. The age on the charge sheet
should be deleted accordingly and substituted with the new age. Any variation, however,
will be recorded on the plea sheet before plea is taken. This should be done in respect of
each accused person if they are jointly charged.

It has already been pointed out that the charge already drawn will be the charge to which
the accused will be called upon to plead.

The accused person must plead to the charge personally. Counsel should not be allowed
to plead on behalf of the accused person. If such a thing happens, the purported plea is
null and without validity and will constitute a mistrial – the High court will quash such a
conviction. The purpose of the plea is to ascertain whether the accused admits or denies
the charge. Section 251 (1) of the CP & EC.

“When an accused appears or is brought before a court, a charge

containing the particulars of the offence which he is accused shall be read
and explained to him and he shall be asked whether he admits or denies
the truth of the charge.”

In other sophisticated jurisdictions, once the charge is read to the accused person, he is
asked “Do you plead guilty or not guilty?”, or “How do you plead?” The accused will
answer “guilty” or “not guilty”, as the case may be. However, our communities are not
that sophisticated yet. Taking plea, therefore, calls for great care, patience and attention
on the part of the court. In our courts, most people appear without the benefit of a lawyer.
The court, therefore, must explain the ingredients that constitute the offence charged and
ensure that the accused understands. It should then ask the accused whether he admits or
denies the charge.

The admission must be unequivocal (unqualified) as provided in s. 251. If there is partial

denial or admission, for example, “I admit, but I was drunk”, or “I did not know what I
was doing”, then the court must enter a plea of “not guilty”. Where the magistrate is in
doubt as to whether the accused understands the ingredients, or that there may be a good
defence, he must record a plea of “not guilty” and hear the evidence. The reply “I admit”
is not unequivocal. The court must put all the ingredients of the offence to the accused
person separately and ensure that he understands and admit each separately. The record
should sufficiently clear to reflect this, so that the High Court, in exercise of its appellate,
revisionary or confirmatory powers, is left in no doubt that the plea was properly taken.
When taking the plea, it is not required of the magistrate to inquire into the truthfulness
or falsity of the accused’s statements. He is only required to ascertain that the accused
understands what he is pleading to, and to record every admission or denial, as nearly as
possible, in the words used by the accused. The court should, therefore, not seek to cross-
examine him on his statements.

It is important to impress on the accused person that it is not the court that is accusing
him. The accused person must, from the very beginning, be made to understand that the
court is independent and impartial and that its function is to try the case.

To achieve this, the reading of the charge should be preceded by statements such as “It is
alleged by the State that you …” or “it is said by the state that you ….” or, where
prosecution is brought by a private prosecutor, the word “the state” may be substituted by
the name of the private prosecutor.

At the end of the reading of the charge, the court should ask the accused if he admits or
denies the charge. This can be ascertained by putting to the accused the following
statements:

“You have heard the reading of the charge – do you admit or deny it?”, or
“Do you understand the reading of the charge? Do you admit or deny it?”

If he admits it, then each and every ingredient of the offence will be put to him to admit
or to deny separately.

Where the intention of the accused is a necessary ingredient of the offence, for example,
the offence of theft, this must be put to the accused. Replies like “I intended to keep it as
my own”, or “sell it” would suggest an intent to permanently deprive the owner while “I
intended to return it later” does not, and will entail a pea of “not guilty”. It is possible in
theft charges that the accused may admit stealing only part of the quantity of the goods or
different types of goods in the charge. The court should, in such cases, ascertain whether
the prosecution will accept the plea in that form. If the prosecution does accept, then the
quantity of goods denied will be deleted and substituted with the quantity admitted, and
the accused will plead to the charge as amended. If the prosecution does not accept such a
plea, then a plea of “not guilty” should be entered and the court will hear the evidence. If
there are more than one count, the accused must plead to each count separately.

If the accused denies the charge, for example, if he says, “I deny it”, the court should
enter a plea of “not guilty” there and then. There will be no need to require him to deny
each and every ingredient of the offence.

Plea of Guilty (Procedure)

Section 251 (2) reads:

 “If the accused admits the truth of the charge his admission shall be
recorded as nearly as possible in the words used by him and he may be
convicted and sentenced thereon:

Provided that before a plea of guilty is recorded, the court shall ascertain
that the accused understand the nature and consequences of his plea and
intends to admit without qualification the truth of the charge against him.”

This subsection, in essence, is directing that once the court has recorded admission of the
charge by the accused in his or almost his own words, it must inform him that it could
convict and sentence him on such an admission and that he does not intend to qualify the
same, it should enter a plea of “guilty”.

Once a plea of guilty has been entered, the prosecution is relieved of his obligation to call
a witness to prove the case. The essence of calling witnesses is to prove that the offence
was committed by the accused person. Therefore, once the accused, on the words from
his own mouth, admits to have committed that offence, there is no need to call witnesses.
The accused person will stand to be convicted on his own plea. The court will call on the
prosecution to give a brief outline of the facts of the case. A brief outline of the facts is in
fact a summary of the prosecution evidence. The prosecution must present to the court
the summary of their evidence and will tender the documents, articles as formal
statements of the accused person without formal proof. The court will take note of the
outline of the facts and accept any document or thing tendered as evidence and note it
down as an exhibit. The court may ask the prosecution to clarify points not dealt with and
will note them down.

When the prosecution finishes outlining the facts, the court should address accused
person in the following manner:

“You have heard the prosecution. Are the facts as outlined true?”
(correct?).

This is important because it is the only way that the court can ascertain that the accused
admits the offence to have been committed in the manner that has been outlined. The
reply of the accused person must be noted on record. The court may further ask the
accused whether he has anything to say; to add or take away from the facts as outlined.
His reply must be noted down on the record. If the accused says anything in reply which
qualifies his admission of the offence, then a plea of “not guilty” should be entered and
the court will hear the evidence. However, if whatever he says does not amount to a
qualification of his admission of the offence, the court should proceed to convict him.
The conviction should be recorded as follows:

“On your own plea of guilty and on your admission of the facts as outlined by the
prosecution, I find you guilty and I convict you of
……………………………………………… as charged, or
 On your own plea of guilty, and on your admission of the facts as outlined by the
prosecution, I find you guilty and I convict you as charged.

………………………………..
(Signature of the Magistrate)”

The entering of the finding of guilty and conviction concludes the case. There is no need
for writing a judgment.

In a charge which has several counts, it is advisable that facts for unrelated offences must
be given separately. This is not only more orderly, but it also allows the court, the
accused person and the review, confirming or appellate court to follow the facts more
easily. Since the finding of guilty and the conviction have to be entered separately for
each offence charged, it is easier to relate the facts to the offence charged where facts are
so presented. Regard must be had to s. 127 (1) and (2) of the CP & EC.

There will be times when accused will plead “guilty” and “not guilty” to some of the
offences in the charge sheet. These are called mixed pleas. The court has a choice
whether to dispose of the pleas of “guilty” charges first or the “not guilty” ones. Chief
Public Prosecutor v Ng’oma and another [1990] 13 MLR 94 (HC)/ Rep v Banda [1990]
13 MLR 373 (HC)

It is also open to the prosecution to withdraw the counts on which pleas of “not guilty”
have been entered to allow the court to dispose of the counts on which there are pleas of
“guilty”.

There will be times when the facts outlined by the prosecution do not disclose an offence
R v.Mphande 16 2 MLR 732 . The court must so inform the prosecution and allow them
to correct the situation by adducing facts that would disclose the offence. Where the
prosecution is unable to do so, the court must enter a plea of “not guilty”. It is not
allowed at this stage of the trial to acquit the accused person.

Antecedents/Previous Record [s. 260]

Once the court has entered the finding of guilty and conviction, it should call upon the
prosecution to state the accused person’s antecedents or his previous record. Under s. 260
of the Code, the court requires to hear any evidence about the accused that will help it to
decide the proper sentence to be imposed on the accused person. Where the accused has
no record, the prosecution will inform the court that he is a “first offender”. If the accused
has previous convictions the prosecution will inform the court that he has previous
conviction and produce his record or, if no record is available, give particulars of the
previous convictions. The court must put it to the accused whether he was so convicted.
If there are several, each previous conviction must be put to the accused separately, and
his replies noted separately. Any previous conviction admitted is deemed to be provided
by the admission. If the previous conviction is denied, the court should put it to be
prosecution, whether they wish to prove it or not. Previous convictions (s) will be proved
according to ss. 6 and 7 of the Fingerprints Act. If the prosecution to do not wish to prove
the disputed previous convictions (s), the court will note these on the case record as not
proved and disregard them for the purposes of sentencing.

The prosecution may also give the court further information on the accused person’s
character in any manner that the court accepts. If the information is unfavourable, the
accused will be called upon to reply. If he denies it, it will be disregarded, unless the
prosecution wish to call evidence to substantiate it. The accused will have a right to call
evidence in rebuttal. The court must note all this on record. The prosecution have a right
to cross-examine the witness or witnesses called in rebuttal.

Mitigation

Apart from having a right to call evidence in rebuttal of allegations against him, the
accused person, as a convicted person, has a right to make a plea in mitigation of the
sentence. A plea in mitigation is a prayer made by the accused to the court for the court’s
consideration in order that it reduces the severity of the punishment that it may pass on
him. The prayer will generally be pertaining to his good character or circumstances of the
commission of the offence or his personal commitments. The accused has a right to call
evidence in mitigation, if he wishes. If he does, the prosecution has a right to cross-
examine the witnesses called and also to call evidence to rebut the accused’s evidence in
mitigation. R. V. Busili 8 MLR 356

After the court has heard the accused’s plea in mitigation, it will sentence him
accordingly.

Newton Hearing

There will be times when the accused person in mitigation will plead facts which do not
qualify his plea of guilty, but which, if true, could severely affect the sentence, and the
prosecution does not accept the version of the facts presented by the accused. The court
will then have before it a serious dispute, not about the offence having been committed,
but on how it was committed. Since there is no dispute as to the commission of the
offence and the guiltiness of the accused, the court need not enter a plea of not guilty and
try the case. It should however, allow the prosecution to call evidence to substantiate the
facts as alleged. The accused will have the right to cross-examine the witness. At the end
of the prosecution’s evidence, the court should ask the accused to call evidence in
rebuttal. The prosecution will have the right to cross-examine the accused witnesses.
Thereafter, the court should make a finding on the disputed facts for or against the
accused person. This is what is referred to as the “Newton Hearing” – following the case
of Newton (1982) 77 Cr. App. R. 13.
It will seem, therefore, that a plea of guilty can be withdrawn at any time before sentence,
by the accused or by the court. It is necessary to note that according to s. 248 of the CP &
EC, the accused, after sentence, is barred from appealing against the conviction.

Plea of Not Guilty

When a plea of not guilty is recorded, the allegation or charge must be proved by the
prosecution. The prosecution will proved the allegation by calling witnesses to testify on
the allegations. The prosecution is required to prove each and every ingredient of the
offence charged. It is not allowed for the prosecution to excuse themselves from this
obligation by pleading that the accused person partially admitted some of the allegations
when taking plea. “A plea of not guilty must be taken as a general denial”:Wesley v. R
1995 2 MLR 267
Once entered, any admission or apparent admission made by the accused person when
taking plea must be totally disregarded. The court should not allow the prosecution to
rely on this even during cross-examination of the accused or in their submissions in the
case. Therefore, the charge in total will be subject to proof on trial.

Change of Plea
Can take place at any time. Court should suspend hearing evidence to ensure that the
accused want to do so out of free will.

However once a sentence has been pronounced, court cannot accept change of plea: R. V.
Busili

Pleas by several accused

R. v. Zimba 6 MLR

The court may call a person who has entered a plea of guilty as witness to his co-accused.
Bukenga 1952 19 EACA

Withdrawal of case to allow the accused to testify and then be arrested later: Section 81
CPEC

Failure to Plead

An accused person may fail to plead to a charge for several reasons:

(a) because of mental incapacity (illness or defect);

(b) because of physical incapacity – that he is deaf or speech handicapped

(dumb);
 (c) because he wilfully chooses to remain silent

In the three above situations, such an accused will be said to have failed to plead because
he is:

(a) unfit to plead;

(b) mute by visitation of God; and

(c) mute of malice.

(a) Unfitness to Plead.

Whether or not an accused person is fit to plead, is determined in accordance with

tests laid down by common law. The procedure to be followed, however, is as laid
down in s. 133 of our CP & EC, which reads:

“(1) When in the course of a trial or preliminary inquiry the court has
reason to believe that an accused may be of unsound mind so as to be
incapable of making his defence, the court shall adjourn the trial or
inquiry for such period not exceeding one month, as the court may deem
fit, and shall …..”

The question of whether or not the accused is fit to plead may be raised by either the
prosecution or the defence or the court itself. The provisions of s. 133 (1) must be
interpreted to mean that once the court is alerted of the fact that the accused may be of
unsound mind, it is required to invoke the provisions of s. 133 (1) (a), (b) and (c) and all
on a medical practitioner for his opinion. The test of unfitness to plead is whether the
accused person will be able to understand the course of the proceedings so as to make a
proper defence. His ability to understand questions and reply rationally will be a relevant
factor, but the court must also consider whether he will be able to understand the
evidence given, instruct counsel or give evidence himself if he so desires, that is, give his
defence.

Under s. 133 (1) (a) and (b), the court will order that such an accused be kept in custody
for observation and treatment, or direct a medical practitioner to examine the accused and
inquire into his mental capacity, particularly as to his ability to give his defence, and
report to the court thereon. The court is required to submit to the said medical practitioner
its order with a report containing reasons for giving such directions. If at the date the case
is adjourned the report is available, the court will proceed to consider the same and
should furnish such report to the prosecution and the defence. The court has discretion to
call the medical practitioner to testify orally after consider the report and evidence
thereon and any other evidence by the prosecution or defence, the court is of the opinion
that the accused is of unsound mind and unfit to plead, it should adjourn the matter to a
“then unspecified time and place”. The accused may be released on security where the
court decides that it is a proper case for bail, on sufficient security that the accused will
not be injurious to himself or others, or it may make a reception order – s. 133 (4), that he
be admitted at a mental hospital for inquiry and call the accused to appear before it and
inquire into his capacity: s. 133 (5).

If, while accused is in the mental hospital, the medical practitioner is of the view that he
is fit to plead, he shall forward a certificate to this effect to the court that made the
reception order and remit the accused person to prison. The prison will remand the
accused on authority of the medical practitioner and the certificate and reception order
shall forthwith cease to be of effect. The court may receive the certificate in evidence or
call the medical practitioner to give oral evidence. If the accused is found to be fit to
plead, then a plea will be taken. Otherwise a new reception order will be made s. 136 of
CP & EC.

It is important to note that in fact no plea is recorded when one is suspected of being unfit
to plead. It would appear that from our law, unfitness to plead is limited to cases where
the accused suffers from mental illness or defect only.

(b) Muteness

When an accused remains silent where called upon to plead, the question that arises is
whether he is mute of malice of by visitation of God. In both cases, the court will enter a
plea of not guilty on behalf of the accused person.

1. If the court finds that the accused person is mute by visitation of God, the
court will adjourn the case for a period deemed sufficient to establish
means of communicating with him. For example, it may call experts at
sign language, or persons close to the accused who are able to understand
him. When the mode of communicating with the accused person has been
established, the trial will continue using that person to interpret
proceedings from the court to the accused and vice versa.

2. If the court finds that the accused person is mute of malice, it will proceed
with the case in the normal way. It should ensure that all the rights of the
accused person to a fair trial are observed and it should record his
muteness throughout until conviction and sentence.

Right to Remain Silent

Section 42 (2) (f) (iii) of the Constitution – When one asserts his right to remain silent at
plea, court shall enter a plea of “Not Guilty”. This being a novel position in our law it is
doubtful if this will be regarded as muteness. Should he decide to exercise the right to
remain silent in the course of the trial, the court will follow the same procedure as in
“mute of malice”, ensuring that the accused’s rights to a fair trial are observed and
respected.
Director of Public Prosecutions v Banda and others
[1997] 1 MLR 7 (SCA) : sections 313 and 314 of the Criminal Procedure and Evidence
Code are invalid to the extent that they do not recognise the right of an accused to remain
silent as provided for by section 42(2)(f)(iii) of the Constitution.

Procedure Where Accused Cannot Understand Proceedings (s. 138)

There are times when a person who is otherwise sane will be unable to understand the
proceedings. The court must record its finding on the accused’s situation with its reasons.
It will then enter a plea of not guilty and proceed with the trial. If such trial should end in
a conviction, the court should forward the record to the High Court, with a report on the
circumstances of the trial. The High Court will make an order as it deems fit.

This procedure should no be used when the court is of the view that the accused is
otherwise of unsound mind. This procedure is only available when the court is of the
view that the accused is sane, but that for one reason or another is unable to understand
the proceedings. The High court had criticised the effectiveness of this procedure even
where the court, after conviction, thought the accused be of unsound mind. It has said in
such a case, the court should have convicted and sentenced and accused and send the
record to the High Court. It is important to remember that this procedure is available only
when the accused is sane.

Autrefois Acquit or Autrefois Convict

The pleas of autrefois acquit or autrefois convict and pardon are known in bar. If proved
and upheld, the State is barred from proceeding further with the charge and the accused
will be discharged. The essence of these pleas is to protect a person from being punished
twice for the same offence. In practice, this rarely happens, as the prosecution would not
bring the accused to court again if they are aware that he was convicted or acquitted on
the same offence. Section 42 (2) (f) (vii) of the Constitution recognizes this as a right to
fair trial.

The raising of the plea will entail ascertaining:

(a) what is meant by being prosecuted twice for the same offence;

(b) what amounts to an acquittal or conviction; and

(c) what is the procedure to be followed.

In our code, autrefois plea is covered under s. 131 which reads:

“(1) An accused against whom a charge has been filed may plead
 (a) that he has been previously convicted or acquitted by a court of the
offence; or

(b) that he has obtained the Presidential pardon for his offence

(2) If the court holds that the facts alleged by the accused do not prove the
plea, or if it finds that it is false in fact, the accused shall be required to
plead to the charge.

(3) If the court holds that the plea is true in fact, the accused shall be
discharged.”

What Amounts to Being Tried Twice

What amounts to a second trial on the same offence has been determined by case law as it
has developed. But the case of Connelly v DPP (1964) AC 1254 developed what could
presently be guidelines on this. These are:

(a) An accused cannot be tried for a crime in respect of which he has already
been convicted OR acquitted.

(b) An accused cannot be tried of a crime in respect of which he could have been
convicted on some previous trial, for example a lesser offence

(c) An accused cannot be tried for a crime which is in effect the same or is
substantially the same, as a crime of which he has previously been acquitted
or convicted, or could have been so convicted by way of alternative verdict.

(d) One test is whether the evidence which is necessary to support the second
trial, or whether the facts which constitute the second offence, would have
been sufficient to procure a legal conviction on the first trial, either in respect
of the offence charged or in respect of an alternative offence with which the
could have convicted if that second offence was committed at the time of the
first trial.

(e) What is essential is whether the crime charged is the same or is in effect, the
same, or is substantially the same as the first offence tried. It is immaterial
that the facts or witnesses to be examined in the second trial are the same.

What Amounts to Acquittal or Conviction

For the plea of autrefois to succeed, the earlier conviction or acquittal relied on must have
been by a court of competent jurisdiction – s. 132, and the proceedings must not be ultra
vires, that is, a court of competent jurisdiction must be properly constituted and act within
the procedures and not without.

The essence of the plea is bar is to prevent a citizen from being punished twice for the
same offence. In s. 185 of the Code, it is stipulated that:

“The existence of any judgment, order of decree which by law prevents

any court from holding a trial is a relevant fact when the question is
whether such court ought to hold such trial.”

For the plea in bar to succeed, therefore, there must be complete adjudication against the
accused person and final disposal of the case by sentencing or issuing an order or decree
finalising the case; regard must be had to s. 81 (b) acquittal following a withdrawal of
prosecution during the defence case, s. 249 acquittal following withdrawal of
complainant in a private prosecution, s. 322 untried offences taken into consideration
upon sentencing and disposals under s. 337.

Procedure on Plea of Autrefois

The CP & EC does not prescribe the procedure to be followed when this plea is raised.
But it is accepted that an accused may raise this plea by simply stating that he has already
been lawfully convicted or acquitted of the same offence by a competent court. This plea
should be raised when the charge is read and before the accused pleads to the charge, but
failure to do so then, is not fatal. The accused may raise this plea at any stage of the trial.
Once the plea has been entered, the burden is on the accused to make good the plea on a
balance of probabilities s. 187 of the Code. The decision whether the facts are true or not
will be made by the court.

When making good the plea, the parties may bring forth the record of the former trial.
However, this is not restrictive,; they may call evidence as to the identity of the persons
on the crime which is in the court record – s. 181 of the Code. The defence and
prosecution will rarely have serious dispute on the facts underlying the plea. In such
circumstances, the defence ought only to read out the brief facts of the previous trial and
state facts in the second trial on which they intend to rely, or if deponed to, place the
depositions before the court.

If the plea succeeds, the accused will be discharged and the case dismissed. If the plea
fails, the accused will be called upon to plead to the charge or the trial will continue from
where it stopped as the case may be.
 Chapter 6

PROCEDURE AFTER A PLEA OF NOT GUILTY

Trial Procedure – Subordinate Court

As we have seen in Chapter 3, once the court enters a plea of not guilty, the charge in
whole has to be proved by the prosecution. The prosecution will prove the charge by
calling evidence. Section 252 of the code states:

“If the accused does not admit the truth of the charge or does not plead or
claims to be tried, the court shall proceed to hear the case as hereinafter
provided.”

This section, in essence, says that once an accused denies the charge or does not plead or
claims that he/she be tried, the court should proceed to trial as provided by the code. [We
have already dealt with failure to plead and autrefois acquit and convict]. What we now
have to look at is the plea of not guilty. Section 253 of the Code states:

“In cases where section 252 applies the court shall proceed to hear the
complainant or the public prosecutor and to take all such evidence as is
produced in support of the prosecution. Before they are examined,
witnesses for the prosecution shall be sworn or affirmed in accordance
with the Oaths, Affirmations and Declarations Act.”

Case for the Prosecution

Following the plea of not guilty, a trial proper commences with the prosecution’s case.
The prosecution have to start because the burden to prove the accused person guilty lies
on them. Section 187 (1) of the Code states:

“The burden of proving any particular fact lies on the person who wishes
the court or jury, as the case may be, to believe in its existence, unless is
provided by any written law that proof of such fact shall lie on any
particular person:

Provided that subject to any express provision to the contrary in

any written law the burden of proving that a person who is accused of an
offence is guilty of that offence lies upon the prosecution.”

The prosecution’s case is divided into the opening speech or address and the evidence.

Opening Address by the Prosecution

This is governed by s. 258 (1) of the Code, which reads as follows:

 “(a) The prosecution shall be entitled, but shall not be required, to
address the court before calling evidence.”

Making an opening address by the prosecution therefore is not mandatory; it is

discretionary. In most cases, it will not be necessary to make an opening address, but it
may be beneficial in long and complicated cases to do so.

There is no direct authority on what the prosecution should put in opening address.
However, it is expected by convention that the prosecution will explain the legal
ingredients of the offence and then give a brief overview of the evidence it intends to call
to prove the elements of that offence. The prosecution, however, must be careful not to
allege matters which they will be unable to substantiate when giving evidence.

Evidence of the Prosecution

The prosecution will lead evidence of their case by calling witnesses to testify. The
general rule is that the prosecution must call all witnesses listed at the back of the charge
sheet. It is a requirement of practice to list the witnesses at the back of the charge sheet.
Those witnesses will be the ones that will have tendered statements to the police. There
are no rules for foreclosure in a subordinate court, so the defence will not have
foreknowledge of what the witnesses will say. Be that as it may, the prosecution is not
obliged to call all witnesses listed. But should they choose not to call all of them, they are
obliged to inform the defence of the availability of those witnesses and, on request, hand
over the statements of those witnesses to the defence. The defence may, if they wish, call
those witnesses in defence. R. v. Banda 2 MLR 763

Examination of Witnesses

When a witness is called, the court shall ascertain in what language the witness will
testify, whether he believes in God, and whether he will give evidence on oath or
affirmation.

Depending on the answer, the witness will be sworn or affirmed in the language of his
choice and be examined-in-chief by the prosecution, cross-examined by the defence and
re-examined by the prosecution. The court must record that he has been sworn and in
what language he has been sworn. The oath or affirmation will be in accordance with the
Oaths, Affirmations and Declarations Act. This is recorded in the following manner:

PW1 (DW1) sworn in Chichewa, or

PW1 (DW1) sworn and states in Chichewa, or (s/s in Chichewa)

It should be noted, however, that notwithstanding the choice of the language when taking
oath or affirmation, a witness is free to switch languages in the course of giving evidence.
The court should not be impatient or penalise him for this. However, it should find out
from him which language he prefers to use so that the interpreter may interpret
effectively.

Examination-in-chief [s. 214 (1)]:

Examination-in-chief is the eliciting of the evidence or story of what happened, by means

of questions and answers by the party that calls the witness; in this case, the prosecution.
It is not allowed to ask leading questions: see s. 218 (2). Under s. 217 of the Code,
leading questions are questions that suggest the answer that is expected from the witness.
It is also not allowed to elicit hearsay or opinions on evidence during examination-in-
chief. Under s. 214 (3), the questions must also be relevant to the case. When the
prosecution, have finished leading their evidence-in-chief, they must so inform the court.
The court will then inform the defence of their right to cross-examine the witness.

Cross-examination [s. 214 (2)]:

Cross-examination is the questions of the witness by the adverse party. The objective of
cross-examination is to discredit or mitigate the damaging evidence-in-chief given
against the accused person and also to introduce the defence’s case by suggesting or
giving an alternative version to the case. It is allowed to ask leading questions, solicite
hearsay or opinion evidence [s. 218 (4)]. The adverse party, therefore, has a wider
latitude in cross-examination. Special note should be taken of s. 214 (7) of the Code. This
gives the adverse party such wide latitude to the extent of injuring the character of the
witness. Be that as it may, the court must always guard against harassment of the witness
and should pay due regard to s. 215 of the Code when allowing questions under s. 214 (7)
of the Code.

The mitigation of the damage caused by the evidence-in-chief can be done by asking
questions that show that the witness is unreliable, that he did not refer to certain facts, and
get him to admit this, that he is or bad character. It is also allowed to put “stock
questions” to the witness in cross-examination; for example, “have you ever quarrelled
with the accused?” or “Who else was present when this happened?”, or “You said this
happened at night, how were you able to see in the dark?” Stock questions tend to suggest
to the court that the witness did not say everything about the issue or ought to have said
more than he said.

When the defence have finished cross-examination, they should so inform the court and
the court will call on the prosecution to re-examine the witness. In case the defence do
not wish to cross-examine the witness, the court should record Cross-examination or
XXD: Nil, to signify that it did inform the defence of their right to cross-examine but that
the defence declined to do so.

If there are more than one accused persons, each accused person, in the order that they
appear on the charge sheet, must cross-examine the witness before the prosecution is
called upon to re-examine the witness.
I may happen that an unrepresented accused person, instead of asking questions in cross-
examination, starts giving his version of the story. The court should properly instruct him
and help him to construct question from his story. Nothing that the accused says in
answer to the magistrate or in putting his questions to the witness must be construed as
evidence against him. It is only what the witness says in answer to those questions that is
evidence.

Re-examination [s. 214 (3)]:

Re-examination of the witness by the part that called him soon after cross-examination.

The purpose of re-examination is to rehabilitate the evidence of the witness by the party
that calls him, after the damage cause by cross-examination by the adverse party. Re-
examination must only deal with matters raised in cross-examination. No new matters
may be introduced, save with the permission of the court, and this is exceptional [s. 214
(6)].

Leading questions, hearsay and opinion evidence are not allowed [s. 218 (2)]. The
questions must, once again, be relevant [s. 214 (5)].

If the party does not wish to re-examine the witness, the court should record, Re-
examination or RXD: Nil, to signify that the party exercised its right.

It should be noted, however, that since the adverse party can raise hearsay or opinion
evidence, and generally has a wider latitude in cross-examination, the party who re-
examines the witness may refer the witness to anything that was raised, for the witness to
explain his position.

When the prosecution finish re-examining the witness, they must inform the court. The
court will then append its signature immediately after the end of the re-examination to
close off the witness’ evidence. The witness will then be allowed to leave the witness
box. The prosecution cannot therefore as of right recall that witness.

All witnesses called by the prosecution will be subjected to the procedure described
above. When the prosecution finishes calling its witness it must so inform the court and
the court must record that, “Prosecution closes its case”. Thereafter, the prosecution
cannot call any more witnesses as of right. The magistrate with then consider whether
there is a case to answer.

Case to Answer [s. 254]

After the prosecution has closed its case, the court must decide whether the evidence
discloses a case to answer against the accused person on all of the counts charged. This is
governed by s. 254 of the Code.
It is imperative on the court, under s. 254 of the Code, after the prosecution closes its case
that it makes a finding of whether the accused person has a case to answer. The court,
therefore, must examine the prosecution evidence to decide whether there is sufficient
evidence to justify calling upon the accused person to give his defence. Evidence
sufficient to justify calling the accused person to his defence falls short of evidence
beyond reasonable doubt that the accused is guilty, but should be sufficient to give
grounds for presuming that he has committed the offence.

It is also imperative on the court, after the close of the prosecution case, that it has to
consider whether the evidence discloses the offence that has been charged or some other
offence. As we have already seen in the rules on what amounts to being tried twice for
the same offence, when dealing with the plea of autrefois, the State will be barred from
prosecuting the accused for any offence disclosed if the court omits to find a case to
answer on such offence at this stage. If the offence disclosed is different, then the court,
subject to s. 151, may amend the charge and requests the accused person to plead to the
charge as amended.

If the court finds that the evidence is not sufficient to justify calling the accused person to
give his defence on the offence charged or any other offence, then it must deliver a
judgment to that effect, in compliance with s. 139 and s. 140 of the Code, acquitting the
accused person. However, if it finds that there is sufficient evidence to justify calling the
accused person to give his defence on the offence charged or any other offence, then it
will record its finding and call on the accused person to give his defence without
commenting on the strength of the evidence for the prosecution.

Submission of No Case to Answer

Under s. 258 (2), the defence may address the court on a submission of no case to answer
to which the prosecution have a right. This, however, does not excuse the court, where
the defence does not so address it, especially where the accused person is unrepresented,
from making a finding on whether or not a sufficient case has been made to justify calling
the accused person to his defence.

THE DEFENCE CASE

Where the court finds that there is a case to answer, it shall so record and inform the
accused person that he is required himself to give evidence on oath and shall be asked if
he has any witnesses to call or any other evidence to adduce in his defence if he so
wishes: s. 254 (4).

Notwithstanding s. 254 (4) and s. 256 (1) of the CP & EC, the defence can proceed in
four ways:

i. Accused giving evidence but not calling any witnesses; or

 ii. Accused giving evidence and calling witnesses; or

iii. Accused not giving evidence but calling witnesses; or

iv. Accused not giving evidence and not calling any witnesses.

The court will record how the defence intends to conduct its defence before proceeding to
hear the defence case.

Section 258 (3) provides that the defence may make an opening speech before calling
their evidence. The defence case, therefore, could be separated in the opening speech and
evidence.

Opening Speech by the Defence

Unlike, in the case of the opening speech for the prosecution, s. 258 (3) stipulates what
the opening speech by the defence may contain:

“When the accused is called upon to make a defence, he or his counsel

may before producing his evidence, open his case stating the law on which
he intends to rely….”

By convention, however, it has been recognised that the opening speech need not be
restricted to the law on which the defence intends to rely. The defence may give a brief
overview of the anticipated defence and criticise the evidence given by the prosecution in
their case. Be that as it may, it should be noted that in making of an opening speech by
the defence is not mandatory. Like in the case of the prosecution it is discretionary and
the discretion lies with the defence.

Evidence of the Defence

The burden of proof in criminal cases is always on the prosecution. Section 42 (2) (f) (iii)
gives the accused the right to remain silent during trial and not to testify during trial. The
accused person is, therefore, not obliged to give evidence in his defence. He has a right to
opt to remain silent. Under s. 42 (2) (f) (iv) he has a right to adduce evidence and not to
be compelled to be a witness against himself or herself. Thus, he may elect to call
witnesses to give evidence in his defence, but not give evidence himself. When reading s.
254 (4), it should no be taken that it is mandatory for the accused to give evidence and/or
call witnesses.

The case for the defence comes under s. 255 of the code. Should the accused elect to call
witnesses in his defence, then the witnesses will be sworn and treated the same way as
the prosecution’s witnesses. The rules on examination-in-chief, cross-examination and re-
examination will equally apply to the defence witnesses.
Where there is more than one accused person, each accused will be a defendant in his
own case and, therefore, will be conducting his own defence case. Only when co-accused
are represented by one counsel would they be able to conduct a joint defence. The court,
therefore, must enquire from each accused separately whether he wishes to give evidence
and call witnesses in his defence. They will give their evidence in the order they appear
on the charge. The witnesses called will be numbered chronologically even when the
accused give evidence. The co-accused person should cross-examine the witness’s one
after the other in the order that they appear on the charge, before the witness is cross-
examined by the prosecution and then re-examined by the accused who called him.

The Accused as a Witness [s. 256]

Should the accused person elect to give evidence in his defence, he will be informed that
he will be treated like any other witness. He will give his defence from the witness-box,
unless the court directs otherwise. He will be sworn in and be obliged to answer any
questions put to him and to produce anything required of him, and be subjected to cross-
examination. If the accused elects not to be sworn, he must be informed that greater
weight is attached to sworn evidence than unsworn evidence. Failure to comply may be
adversely commented upon by the prosecution and may be taken into account by the
court when making its decision: s. 256 (2) of the Code.

Section 256 (3) states that when an accused elects to call witnesses in addition to himself,
he shall call them after he himself has been called as a witness. The rationale behind this
rule is that in criminal trials, witnesses are supposed to be kept out of the court until it is
their turn to testify. However, it is a procedure requirement that the accused person
should be present in court at the time witnesses are testifying in his case. This can only be
achieved if the accused testifies first in his defence.

If the accused person informs the court that he has witnesses to call, and they are not in
court, the court can adjourn the case and issue process to compel the attendance of such
witnesses. The court can only refuse to issue process if it is of the view that the accused is
using the opportunity for purpose of vexation, delay, or to defeat the course of justice. In
such cases, the court must record its grounds for so finding. The accused person may be
required to deposit some money towards expenses of the attendance of any such
witnesses. It should always be borne in mind that witnesses perform a public duty. The
requirement to deposit money for the expenses of the witnesses, therefore, must not be
used to defeat the course of justice by denying the accused the right to call his witnesses:
s. 255(2) of the Code.

When the accused has finished examination of the witnesses, he must so inform the court,
and this will be deemed to be the end of the trial.

Competence and Compellability of the Accused Person

The accused person has a peculiar standing in our criminal procedure. As an accused
person, he has his rights to fair trial guaranteed under s. 42 (2) (f) of the Constitution.
This includes his right to remain silent: s. 42 (2) (f) (iii) and not to be compelled to give
evidence against himself: s. 42 (2) (f) (iv), although he is competent to do so.

Once the accused person elects to give evidence, however, he is compelled to conduct
himself like any other witness: s. 256 of the Code. As a witness, he is to so conduct
himself like any other witness, will be adversely commented upon by the prosecution,
and the court may take such conduct into account when reaching its decision under s. 256
(2) of the Code. It remains to be seen what the Supreme Court of Appeal will about the
status of s. 256 of the Code.

Other jurisdictions which grant the rights to remain silent to the accused person have
approached this position by regulating that the decision whether to testify or not must
come from the accused person himself. He must so inform the court, and not through his
counsel, and the court must record this. The court must ascertain from the accused
person, after informing him that there is a case to answer, and that he is required to give
his defence, if he so wishes, whether or not he wishes to exercise such right. It is
expected that counsel will advice the accused person, as his client, on the merits or
demerits of giving evidence in defence, but counsel should not be allowed to answer for
the accused person whether or not he wishes to give evidence in defence.

It is important to remember that once the accused person elects to give evidence in his
defence, he becomes, at law, a witness, and effectively loses his constitutional right as an
accused person. This is no longer a matter of legal fiction, it becomes a constitutional
matter. Until our constitutional and procedural position on the issue of the accused
person’s compellability to answer questions where he elects to give evidence is cleared
by case law or legislation regulation, the court should put this to the accused person and
ask him to answer, for himself, even when he is represented. In other jurisdictions,
accused persons have successfully appealed against conviction where this constitutional
position had not been properly explained – the merits and demerits of giving evidence in
defence. The court should, therefore, ensure that the choice to constitutional safeguards in
favour of giving evidence in defence is made by the accused person himself after being
properly informed.

Re-opening of the prosecution’s Case

The general principle is that once the prosecution have closed their case, they cannot re-
open it. However, there is an exception to this rule. The exception is where the defence
raised new matters which the prosecution could not, with any reasonable diligence, have
foreseen. The court will allow the prosecution to call evidence to rebut such matters: s.
257 of the Code. Be that as it may, the court must use such discretion with great caution.
This procedure should not be used to allow the prosecution to correct omission they
could, with reasonable diligence, have foreseen.
The appropriate time for making an application for leave to re-open the prosecution’s
case is after the defence has closed its case. Where leave is granted to re-open the
prosecution’s case, the witnesses called or recalled will be subject to cross-examination
by the defence: s. 254 (1) of the Code.

Calling and Examination of Witnesses by the Court

The court has powers of its own motion to call and examine witnesses.

Section 201 of the Code gives the court powers to call or re-call any person or witness at
any stage of the trial for examination by the court. The court can only exercise these
powers if it appears to it that such person’s evidence “is essential to the just decision of
the case”. The circumstances giving rise to the use of such discretion by the court will
vary, but would include, where the evidence gives rise to ambiguities or leaves matters in
abeyance. Be that as it may, it will always be limited to the interests of justice, that the
court should be able to come to a just decision of the case.

Where the court exercises this discretion, it must allow parties to cross-examine the
witnesses called or re-called. If necessary, the court should allow an adjournment to
allow the parties to prepare for cross-examination to avoid another party being prejudiced
by its exercise of such powers. The court should not unnecessarily use these powers to
circumvent the procedural restriction on re-opening of the party’s case, and it should
cautiously weigh the circumstances to avoid such an outcome.

Section 238 of the Code gives the court powers to ask any question relevant or irrelevant
to any witness, party or person present in court at any time of the proceedings “in order to
discover or obtain proper proof of relevant facts”. The court is further empowered to ask
any such person to produce anything required to be produced in the proceedings. This
power must be looked at expansively. If these powers were not available, the court would
have been restricted in questioning the parties on matters that are relevant to the case, for
example, questioning the prosecution, or the defence counsel or accused surety about the
absence of the accused person, or ascertaining from the parties estimates of distances
where the witness refers to distance in terms of distances between objects.

Where the court exercises its powers under this section, none of the parties can object or,
as of right, cross-examine such a witness or person on the evidence. Cross-examination
can only be done with the leave of the court. The court will ordinarily, as a matter of
course, give leave to cross-examine such a witness or person where the evidence is
prejudicial to the party.

The circumstances in which the court can exercise such discretion vary, but the proviso to
s. 238 provides that the court’s judgment should still be limited to relevant facts which
have been proved and that the court should not, in exercise of these powers, ask questions
which the witness would not, under the Code be compelled to answer. Like in the case of
the court’s powers under s. 201, the court has to be guided by the interests of justice. The
court, therefore, should avoid giving the impression that it is intervening for or on behalf
of any of the parties. It is important that the court should exercise its powers under the
section with great caution.

Closing Speeches

Closing speeches are the speeches made in summing-up the defence case or the
prosecution case after all the evidence in the case has been called. These speeches are
what are referred to as “submissions”. They are provided for by s. 258 of the Code.

Both the defence and the prosecution have a right to make closing speeches.

In the subordinate court, the defence have the right to make the closing speech summing-
up their case soon after the defence “if the accused gives evidence or calls witnesses in
his defence” [s. 258 (3)]. By this sub-section, the right to make the closing speech need
only be exercised if the accused person leads evidence in defence; whether by himself or
through witnesses. The use of “if” presupposes that where the accused does not lead any
evidence in defence, then he need not make a closing speech. However, although it would
be rare, it has been accepted that it may be necessary for the defence to make a closing
speech even though no evidence has been led in defence, especially in long and
complicated cases, but that such closing speech should in any case be brief.

After the defence closing speech, the prosecution shall have the right to reply on the
whole case: s. 258 (4). In the subordinate court procedure, therefore, the prosecution will
always have the last word.

In the closing speeches, the parties may criticise the opposition’s case by referring to the
evidence adduced and the facts that have been proven or established and referring to the
ingredient of the offence and assert that the case has or has not been made out. The
parties may also comment on the evidence and the law to show that their version of the
case has been made out to prove or disprove the case. The defence, however, is not
confined to putting forward the accused person’s version of the event; they may go on to
the extent of propounding hypotheses as long as evidence had been led supporting the
hypotheses.

Both parties in their closing speech can only refer to alleged facts or matter which have
been the subject of evidence. It is not permissible to include matters in the closing speech
which have not been put in evidence. Further, the prosecution is not allowed to comment
on the silence of the accused person if he has exercised his right to remain silent. It is his
constitutional right to exercise his right to remain silent in the face of an accusation and
in the court of trial: s. 42 (2) (f) (iii). This right can only be displaced if the accused
person elects to give evidence in his defence, under s. 256. The prosecution, as we have
seen earlier, should not even comment on the partial admission made by the accused in
the course of taking plea. The defence, however, where there are more than one accused
persons, may adversely comment on the co-accused person’s silence, when he has elected
to exercise his right to remain silent.

When the court has heard the closing speeches, if any, after all the evidence in the case
has been led, it will proceed according to s. 259 of the code to deliver its judgment
acquitting or convicting the accused person.

Exhibits

Both the prosecution and the defence may have articles, documents or statements which
form part of their evidence. These must be tendered in evidence as “exhibits”.

The articles, documents or statements must be tendered by the witness who ordinarily has
custody of that thing or whose custody of the thing can be trace to the original custodian.
The thing will be introduced by the prosecution or defence, and the witness will identify
it and give evidence on the issues concerning the thing. If the witness is not the one to
tender that thing, the court will make that thing as “unidentified thing”. It is possible for
the adverse party to introduce a thing during cross-examination of the other side’s
witness. The identified things for the prosecution and the defence will be numbered
chronologically. For example, PID1 or DID1, for prosecution or defence

When the witness tenders the thing, it will be making as an exhibit. The exhibits will also
be numbered chronologically. For example, PEH1 or DEX1, for prosecution or defence.

Where the exhibit was marked as an ID before, the court will record PID1 marked PeX1,
as the case may be. But if the exhibit was not marked before, the court will record its
identification and mark it. For example, Switchblade knife marked PEX1.
 CHAPTER ON TRIAL PROCEDURE

Case called
↓
Plea taken
↓
Plea of Not Guilty
↓
Opening Speech by the Prosecution
(if any)
↓
Calling of Evidence by the Prosecution
↓
 Prosecution Witnesses
 Examined-in-chief by Prosecution
 Cross-examined by Accused and Co-Accused (if any)
 Re-examined by Prosecution
↓
Close of Prosecution case

Submission of “no case to answer” by Defence

(if any)
↓
Reply to Submission by Prosecution
↓
Ruling on the Submission of “no case to answer” by the court
(if court finds no case to answer – court to deliver judgment acquitting the accused
person)
↓
Finding of “case to answer” by Court on the offence charged or any other offence
(Amend charge if “case to answer” is on another offence and take fresh plea)
↓
Accused called to his defence
[Warn (inform) accused about his rights]
↓
Opening Address by Defence
(if any)
↓
Calling of Evidence by Defence
↓
 Defence Witnesses
 Examined-in-chief by Defence
 Cross-examined by Co-accused (if any) and then by Prosecution
 Re-examined by Defence
↓
 Close of Defence case
↓
Closing Speech by Defence
↓
Closing speech by Prosecution
↓
Judgment/Finding
↓
Accused Antecedents
↓
Pleas in Mitigation
↓
Sentence/Final Order

END OF TRIAL
 Chapter 7

SENTENCE

The court will pass sentence on the accused person after it has heard the prosecution on the
antecedents and also the accused in mitigation. The court will hear the antecedent and plea
in mitigation following a conviction in the subordinate court and High Court,
under Sections 260 and 321 J of the Criminal Procedure and Evidence Code. In
case of a juvenile court - this will be under s. 14(13) and (14) of the Children and
Young Persons Act,

The (procedure in adult trials will be the same as provided in the plea of guilty
procedure that we considered earlier. However, in respect of a juvenile court, the
court will hear the reports from the probation officer or the doctors on the juvenile’s
home surroundings apart from hearing from the prosecution. In effect sentence is
the process of making the final order disposing of the case after trial judgment and
conviction. Under Section 42(2) (f) (x), of the Constitution a convicted person is
entitled to be sentenced within a reasonable time after his conviction.

Sentence has ordinarily been associated with punishment although; it may not
necessarily refer to punishment. It will however, usually refer to the final order
of the court which imposes some obligation on the convicted person. The offences
charged will have a punishment provided in them or read with a section that
provides punishment. These are scattered through out the statute that create the
offences. Generally our courts have relied on the chapter that provided for
punishment in the Penal Code; Chapter 6, Section 25-36 and the part that
provides for sentence and their execution in the Criminal Procedure and
Evidence Code Part XII, Section 323 to 345. Be this as it may specifics of the
punishments or otherwise are provided for in several different sections of the Penal
Code, the Criminal Procedure and Evidence Code or other written laws, and can best
be examined when we consider specific types for punishment or final orders.

General Principle

The breadth and complexity of the subject of sentencing makes it impossible to lay down
fixed penalties. Under s.12 of the Criminal Procedure and Evidence Code, any court may
pass any lawful sentence combining any of the sentences which it is authorised to pass,
subject to the courts general jurisdiction under s.14 of the same Code. Different
considerations have to be taken into account depending on the circumstances of the
case. The statute therefore only gives what are maximum or minimum punishments to
which the offender may be liable. Maximum punishments are reserved for the worst
offenders, or worst ways of committing that particular offence. In theory, however, such a
situation has not yet arisen. The aggravating circumstances of the offence and offender
will vary from cases to case as would the mitigating circumstances. The court
therefore should not ordinarily, pass the maximum sentence. 23 However, courts have,
generally taken into consideration the following factors:-

(a) The nature of the offence.

(b) The previous record of the accused person, (The fact that accused person
has a previous conviction is no reason for increasing sentence, but it is a
reason for not granting him any further leniency ordinarily).

(c) The personal circumstance of the particular accused or

offence.

The sentencer must be familiar with the normal sentences passed; by the courts. This
can be discerned from decided cases by the High Court: on confirmation or appeal.
The views expressed by the High Court or Supreme Court as general guidelines or on
particular case must be taken into account to come to an appropriate sentence.

Common Approach

The first thing a sentencer must do is to decide what he intends to achieve by the sentence
he intends. Sentences are passed with several intents on the mind of the sentencer:

(a) To pass an appropriate punishment on the wrong doer

(b) Deter the others who wish to commit that offence or similar type of
offences

(c) To protect the public by putting away the offender

(d) To reform the offender

(e) A combination of the above intents by the sentencer.

23
Rep v Kamil and Yaghi 1971-72 ALR (Mw) 358 at 378-79 court held that the maximum sentence and
consecutive sentence were necessary to protect the public. This is an exception.
The list is not exhaustive. As indicated the sentence a court can pass will be limited by
the maximum of the offence charged or the jurisdiction of the court and by the legal
theory that the worst offence and offender is yet to come.

The second thing that the sentencer will do is to decide the extent of the sentence. That is
how long, if custodial, and how much, if fiscal, and so on. He/she must then look at the
aggravating circumstances of the offence or offender, the guidelines and precedents if
there are any. Depending on what the situation is in his opinion – he may go up the pre-
determined sentence or come down. Sentence like any court order is subject to appeal and
the court should, like any other judicial discretion, give reasons to justify exercising the
discretion either way.

The aggravating and mitigating circumstances that the court will take into account are not
limited to what the prosecution and the defence said in the antecedents and mitigation
respectively. The court is required to look at the totality of the case and asses whether
there are aggravating or mitigating circumstances, even where the convict has no record
or elects not to make a plea in mitigation.

(1) AGGRAVATING CIRCUMSTANCES OF THE OFFENCE

(a) Predetermined crimes

The courts have always taken into account the fact that the offence was
premeditated than one which was committed on impulse (at the spur of
moment) as an aggravating factor.

(b) The nature of the offence

Offences vary in the degree of their seriousness. The seriousness may be in

the nature of the offence itself or in the nature that the offence was committed.
The cross-border extent and effect of the crime will also be considered under
this head.

See Rep v Mthali 1971 -72 ALR Mal. 289

(c) Frequency of the Offence

The court must take into account the prevalence of any particular offence. The
trend changes from time to time and the court must be alert to this. prevalence
may be at local level, i.e. within the administrative district of the court or non-
local. Tied to prevalence of the offence is the need to protect the public. The
court should make it clear in its order which public is the target for protection
when citing prevalence of the offence as aggravating circumstance.

(d) Abuse of Authority

 This is common among employees committing offence against their
employers. e.g.theft. This is referred to ordinarily as breach of trust. But this
will also be there in other case like sexual assault or violence by persons in
position of trust or authority over the victim.

(2) THE MITIGATING CIRCUMSTANCES OF THE OFFENCE

Generally, the reverse of all points on aggravating circumstances of the

offence are mitigating circumstances of the offence.

(3) MITIGATING CIRCUMSTANCES OF THE OFFENDER

(a) That he pleaded guilty:

This will always be taken into account where the penalty is not fixed by law.
An offender who pleads guilty not only saves the court time and expenses but
also accepts responsibility for his criminal conduct.

(b) Age of offender:

The law is generally averse to relatively young people or relatively old people
being in custody. The age is not prescribed for purposes of sentence. Rep v
Ng’ambi 1971-72 ALR Mal. 457

(c) Previous good character:

First offenders are protected under s. 342340 (1) of the Code, that the court
should first of all consider non-custodial sentence. But even for those with a
record the longer it took them to re-offend, that they lived an industrious life
is evidence of good character.

(d) Time spent in custody:

Everyone is entitled to his liberty unless he is proved guilty s. 42 (2) (f) (iii).
The court will take into account custody time on this account. However, this is
not automatic. The court will ignore this factor if the accused was in custody
due to his own misconduct e.g. where he jumped bail, or caused unnecessary
adjournments. Mlembe v Rep 1971-72 ALR Mal 95, Mulera v Rep 1971-72
ALR Mal. 73.

(e) Expression of remorse (Contrition):

Where accused expresses regret for what he has done it is a factor that weighs
in his favour. The expression of remorse is even greater where he takes steps
voluntarily to repair the damage for example restitution. In case of theft by
 servant cause authority has developed where the court could ascertain from
accused whether he is able to restitute. If he expresses an intention to do so,
the sentence would be adjourned to allow the offender time to restitute. Rep v
Mvutho (1971–72) ALR Mal. 128.

(f) Attitude of the accused:

The court will always have regard to the attitude of the accused and his
involvement. There are crimes that have prime movers or active perpetrators
and others are abetters, or passive perpetrators, or where one acts as a result of
mob dynamics e.g. mob-justice, or where one is not aware that one is
committing an offence e.g. borrowing and driving a motor vehicle without
knowing that it is uninsured. The court will take his attitude into account.
Mlembe v Rep (supra) – influence over accused by his senior officers.

(g) Other circumstances

These may include necessity, e.g. where unlicenced driver drives to take an ill
person to Hospital Where the conviction will lead to loss of a steady job and
benefits. The hardship that will ensue to the family members of the offender,
and: special circumstances surrounding health of the offender: Makonyola v
Rep 1971-72 ALR Mal. 74

(4) AGGRAVATING CIRCUMSTANCES OF THE OFFENDER

Generally the reverse of the mitigating circumstances of the offender are the
aggravating ones. However, the courts have differentiated habitual offenders and
repeated offenders when looking at offenders with previous records. For example
where two offenders are convicted, of burglary and theft and both have previous
records:

Bwanali v rep 1964-66 ALR Mal. 329, Maikolo v Rep 1964-66 ALR Mal. 584

Example:

A has three previous burglary and theft offences, and B has one
driving without driving licence, theft and being drunk and
disorderly. A would be less amenable to licence because he is a
repeated and therefore a hardened burglarer:

NOTES OF SPECIFIC PUNISHMENTS

Subject to s. 14 of the CP & EC any court can pass any of the sentences authorised by s.
25 of the Penal Code. For the purposes of this section we will not deal with corporal
punishment: s. 28 of the Criminal Procedure and Evidence Code, because it is now
rendered unconstitutional by s. 19 (4) of the Constitution.
(a) The Death Sentence

The death sentence is provided for in s. 323 of the Criminal Procedure and
Evidence Code and s. 26 of the Penal Code. These stipulate that the
sentence should specify that the convict will suffer death in the manner
authorised by law. According to s. 26 the authorised manner of executing
the death sentence is by hanging. This can only be executed within the
prison walls. Be these as it may this section provides that in case of
treason, the manner of executing the sentence, and where it should be
executed is at the discretion of the Minister. In effect it is possible to
execute such sentence by firing squad and at a market place.

The sentence of death cannot be passed on a juvenile or a pregnant

woman. In respect of a juvenile the “find order” will stipulate that he be
“detained during the Presidents pleasure”.
No period will be specified and this case will be subject to review by the
Board of Visitors.

In respect of a pregnant woman, once the court has determined that the
convicted woman is pregnant as provided in s. 327, it will pass a sentence
of life imprisonment, in lieu of sentence of death.

Once a sentence of death has been passed, the judge will forward the
record and his notes on the evidence to the President: s. 326 of Criminal
Procedure and Evidence Code. S. 26 (2) of the Penal Code, in respect of a
juvenile. It remains the pleasure of the President to effectuate the sentence,
commute it or pardon the convict. In any case the President will act in
consultation with the Advisory Committee on the Granting of Pardon
established under s. 89 (2) of the Constitution. This committee will
ordinarily advise the president on the exercise of his prerogative of mercy.

(b) Imprisonment s. 27 of the Penal Code

As we have seen the court has the discretion to determine the length of the
imprisonment within the prescribed maximum or over the prescribed
minimum. The court under s. 27 of the Penal Code also has the discretion
to order that the sentence to be with or without hard labour unless the
statute expressly says otherwise.

If the court does not make such an order the imprisonment will be
presumed to be with hard labour. It also has the discretion to reduce the
life sentence and to add a fine over and above imprisonment. Where the
accused is charged with several counts in one charge, the court has to
make a separate finding and conviction on each count. Likewise, when it
comes to sentencing the court must enter a sentence separately on each
count: s. 35 of the Penal Code. The sentences imposed will ordinarily run
consecutively: i.e. one after the other, unless the court orders that they run
concurrently; together with the other: s. 17 (1) of the Criminal Procedure
and Evidence Code. It is open to the court to order some sentences to run
concurrent and others consecutive in the same charge. If the court does not
make an order that the sentences are to run concurrently, they will be
presumed to be consecutive. Similarly, if the offender is serving another
sentence, then the court should clearly make an order whether the
subsequent sentence will be consecutive or concurrent to the sentence he
is serving.

The consecutive sentence may cumulatively exceed the maximum

sentence on a particular offence and this on review will be treated as one
sentence by the High Court: s. 17 (2) and (3).

Be this as it may, consecutive sentences are subject to totality of sentence

principle. This principle alerts the sentencer to have regard to the total
length of the sentences passed to ensure that this does properly reflect the
overall seriousness of offending behaviour. There are no precise rules on
this – than what has come out from case law. But subordinate court, the
proviso to s. 17 (2) addresses the totality of sentences by limiting the
Resident Magistrate and First Grade Magistrate total sentence to 14 years
and other magistrates to twice their ordinary criminal jurisdiction. The
High Court may on review consolidate sentences in several cases against
one person to address the totality of sentences principle.

As a result of totality of sentences principle it is not proper to mete out a

long sentence on a prisoner who is already serving a long sentence.
Totality of sentence in this sense is therefore also a mitigating factor. In
English criminal law this principle applies to totality of community orders,
financial orders as well as custodial orders. It remains to be seen if it will
extend to other orders in our case law.

Generally where offences arise out of the same transaction, sentences

should be concurrent e.g. housebreaking and theft. But it is also our law
that the court may make concurrent sentences on offences that are distinct
but committed in quick succession of each other.

(c) Preventive Sentence

A preventive sentence is a sentence of imprisonment which is passed on

an offender, but can exceed the maximum sentence for the offence with
which he is charged. It is governed by s. 11 of the Criminal Procedure and
evidence Code. It is designed to put away an offender for a longer period
in order to protect the public from his offending behaviour. The powers to
order a preventive sentence are restricted to the high Court, Resident
Magistrate Court and the First Grade Magistrate court. The offender must
be over 21 years old, who is convicted of an offence which attracts a
sentence of five years or more, had been previously convicted at least
thrice of an offence attracting a sentence of five years or more, since he
was 18 years old, and has twice before been sentenced to a custodial
sentence. The court may pass a preventive sentence of not less than 5
years and no more than 14 years. This sentence should only be used on
habitual offenders and in order to protect the public. The accused must be
given opportunity to be heard before this sentence is passed. Maikolo v R
(1964-6) ALR Mal 584, Bwanali v R (1964-6) ALR Mal 337

(d) Fines s. 29 of the Penal Code:

A fine is a fiscal penalty imposed on an accused person. S. 29 (1) of the

Penal Code reads:

“Where a fine is imposed under any law, then in the absence

of express provisions relating to such fine in such law the
following provisions shall apply”.

The subsection acknowledges the provisions of s. 27 (3) which reads:-

“A person liable to imprisonment may be sentenced to pay a

fine in addition or instead of punishment”

So where the charge does not prescribe a fine as the sentence, the
court, if it considers it desirable so to do, may pass a sentence of a
fine.

The sentence to pay a fine therefore is subject to the limits set out in the
charging section, the jurisdiction of the court and s. 29 of the Penal Code.
Where there is no statutory limit to the extent of the fine, the fine that may
be imposed is unlimited but should not be excessive. S. 29 (1) (A). Where
the offence charged provides for a fine, the extent of the fine is at the
discretion of the court: s. 29 (1) (b). Where an offender is sentenced to pay
a fine, the court may direct that in default of payment of the fine the
offender will be imprisoned.

In addition to any other imprisonment, a fine may be recovered by way of

levy and sale of moveable or immovable property, unless the court orders
such imprisonment to be default of the fine: s. 29 (2) of the Penal code. In
all other circumstances, unless expressly provided for the fine will be
subject to s. 29 (3) of the Penal code. The default term shall be determined
upon payment of the fine or levy, s. 29 (4) of penal code and s. 334 of
Criminal Procedure and Evidence Code. Where the offender is serving
sentence in default of payment of a fine, subsequently pays into court, the
amount payable shall be reduced proportionately to the amount of days
that remains to be served s. 335 of the Criminal Procedure and Evidence
Code.

The court may suspend the default order for 30 days to allow the accused
to pay in the fine. S. 331 of he Criminal Procedure and Evidence Code, or
order that the fine be paid by instalment s. 332 (2) of the Criminal
Procedure and Evidence Code.

Before any fine is ordered the court must make an enquiry into the means
of the accused person to pay the fine. The sentence of a fine is there to
allow the offender opportunity to avoid prison and it would be an illusion
if the means to pay are not examined. The court should examine the
convicted person as to his means without being influenced by the fact that
some rich relatives may pay the fine on his behalf.

(e) Forfeiture s. 30 of the Penal Code

Forfeiture under s. 30 is a punishment which may be in addition to, or in

lieu of any other penalty in respect of specific offences under Chapters XI
and XLI of the Penal Code. This punishment as put in s. 30 has three
special features:

(a) it is applicable to specific offences

(b) it can be ordered in lieu of any other penalty

(c) if the property cannot be forfeited or traced the court may

assess the value of the said property and order forfeiture of
property to the value of such sum which shall be enforced just
like payment of a fine.

The essence of this form of punishment is to ensure that offender does not
benefit from the gains of their criminal activities.

Be this as it may, the court has powers to order forfeiture of property

which is connected or used in the commission of an offence. More of such
offences are provided for in the Fire-arms Act (Cap. 14:08) and the
Customs and Excise Act (Cap. 42:01)

In both situations the power to order forfeiture is discretionary. The court

therefore has to give opportunity to be heard to the owners of the property
which is subject to forfeiture. See. S. 22 (3) of the Firearms Act, and s.
161 of the Customs and Excise Act.
 (f) Compensation s. 32 of the Penal Code

This section allows the court to adjudge any offender to make

compensation to the person injured by his offence, 24 such an order may be
in addition to or in substitution of any other punishment. The court must
specify the amount awarded in compensation and how it is to be paid: s.
144 of the Criminal Procedure and Evidence Code. If the offender
defaults to pay the compensation ordered, the order may be enforced by
seizure according so s. 330 of the Criminal Procedure and Evidence Code
and s. 29 (2) (b) of the Penal code. If there is no seizure the defaulter or
may be imprisoned according to the scale laid down in s. 29 of the Penal
code – but in any case such imprisonment shall not exceed 3 months.

In any case the court should give the accused opportunity to be heard
where it contemplates to order payment of compensation.

(g) Community Service Order

This is a new form of punishment. It is provided for following the

amendments of s. 25 of the Penal code, by adding “community services”
as a punishment, and s. 339 (2) of the Criminal Procedure and Evidence
Code which reads:

“When a person is convicted of any offence, not being an

offence the sentence for which is fixed by law, the court
may, if it is of the opinion that the person would be
adequately punished by a fine or imprisonment for a term
not exceeding twelve months, fine the person or sentence
the person to a term of imprisonment not exceeding twelve
months but the court may, as the case may be, order the
suspension of the payment of the fine or operation of the
sentence of imprisonment on condition that the person
performs community service for such number of hours as
the court may specify in the order.”

The offender performs unpaid work for the benefit of the community.

This is a new form of punishment which is designed to take over the

Convicted Personal (Employment on public work) Act Cap. 9:03. Both
orders offer alternative to custodial sentence, giving discretion to the court
in certain circumstances and certain offences. The main difference
between the two orders that the Convicted Persons Act, stipulated that the
offender worked 8 hours a day and could be ordered to live in the camp
the District Commissioner. The system of the punishment devolved
control to District Commissioners or their agents. Community Service
24
Injury includes physical injury and financial loss – Chisuse v Rep 9 MLR 141
however, is designed to be home based and intended to minimise
disruption of the offenders’ daily life. The community service and the
court only ceded supervision of the work but retains control of the service.
One other major difference is that while Convicted Person Act provided
for a fixed period of work, as a punishment the community service is
condition on which the substantive sentence is suspended.

Here are extensive guidelines for the invocation of community service

order made under s. 364A of the Criminal Procedure and Evidence Code.

(h) Other Orders:

The court has powers to make other orders as it thinks fit under s. 337,
338 and 339 of the Criminal Procedure and Evidence Code. Those orders
apply where the offence does not have a sentence fixed by law, and the
court “having regard to the youth, old age, character, antecedents, home
surroundings, health or mental condition of the accused or of the fact that
the offender has not previously committed, it is inexpedient to inflict any
punishment the court ‘may’ make such other orders which include,
without entering a conviction dismiss the charge and admonish or caution
the offender, convict the offender and discharge him conditionally or
unconditionally, make a probation order, or allow accused to enter into a
bond to come and receive a sentence and meantime keep the peace,
security to keep the peace and suspended sentence. In all these
circumstances the court must explain to the offender the effect of the
order it intend to pass and the offender must be willing to comply with the
order and the conditions. It is a requirement that the conditions set must
be precise and reasonable, for example court has accepted the condition
that accused “shall not be convicted of an offence of a similar nature”, but
rejected “shall not be convicted of any offence” as not reasonable.

In any case of breach of the conditions the court must summon the
offender and hear him before activating the sentence or order if it finds it
necessary to do so: s. 341 of the Criminal procedure and Evidence Code.

(I) Restitution

Restitution is restoring of property or money’s worth to the person entitled

following theft and recovery of the property or money proceeds of that
property. The court must always make an order restituting the property or
money’s worth to the right owners at the end of the trial: s. 147 (a) of the
Criminal Procedure and Evidence Code. S. 147 (b) however, goes further
to empower the court to order that any property taken from an offender on
apprehension to be applied towards fines, costs or compensation. Read
Makonyola V R
 A restitution order should be based on the clarity of the evidence as to who
the owner of the property is. If the ownership of the property is unclear the
court should be slow to order restitution. Due regard must always be had
to s. 142 of the Criminal Procedure and Evidence Code.

CONSIDERATION OF UNTRIED OFFENCE

s. 322 (1) of the Criminal Procedure and Evidence Code Provides:

“Where an accused has been convicted of any offence the court

may, with the consent of the prosecution and on application by the
accused that the court take into consideration in deciding his
sentence other untried offence of a like character which the
accused admits having committed, take such other offences into
consideration in deciding the sentence if the court is satisfied that
the accused freely and voluntarily admits having committed such
other offences.”

This (s322) is an exception to the general rule that an accused can only be
punished for offences of which he has been charged and convicted. There seems
to be no set procedure and practice has required the co-operation of all three
parties. The thing to note however, is that the offender must first of all be
convicted of an offence then he can apply to the court that the court should take
into account some untried offences of a like character. The application must come
from the offender himself not counsel. So if counsel alerts the court to it – the
court must ascertain and confirm this with the accused. If the court accept the
application the accused will inform the court the offences and the court will
record the date, place and nature of the offences. Once the court accept the
offences as recorded, all through this does not amount to a conviction at law, the
accused will be deemed to have been convicted – s. 332 (2). He can thereafter
plead autre fois convict.

Since the offender is not charged or convicted of the other untried offences taken
into account, the courts sentencing powers are limited to the maximum on the
offences on which he is convicted Chideru v Rep 1966-68 MLR 420. The court
should not take into consideration offences that carry mandatory or discretionary
disqualification or endorsement e.g. licenses. If it does, it means the accused
person will escape the consequences of his actions.

When passing sentence the court can impose a longer sentence than the one it
would have imposed had it been dealing with the offence charged only.

It should be noted however, that in cases of theft by public servant under s. 283 of
the Penal code, the courts have said where the previous untried offences are taken
into account the court must sentence accused according to the minimum sentence
for the total amount stolen including that in the untried offences, and that the
seizure order should include the total amount including the untried offence. The
rationale for these decisions is that the legislature intended that where one steals
money under s. 283, all the money must be recovered unless it is restituted. In
essence therefore, for offences under s. 283 of the Penal code the untried offences
taken into consideration are treated as convicted for purposes of sentence: Zulu v
Rep 1978-80 MLR 149

Lastly, note must be taken that the untried offences are only deemed to be
conviction and will stand so only if the originating offence on which the accused
is convicted stands. If it is set aside or dismissed on appeal or review, the other
offences become outstanding again.

Final Order:

Section 3 specifically prohibits the use of the words “conviction” and “sentence”
in respect of the juvenile. Once the court finds that the case has been made out
against the juvenile, it must record that it finds the “offence proved against him”
and when making an order disposing of the juvenile and the case, it should refer
to it as the “final order”. R v Harawa 1964-66 ALR Mal. 324, R v Mereka
1964-66 ALR Mal. 201

What final orders the juvenile court can make when it finds the offence proved is
provided for by s. 16 of the Act. It is pertinent to note that despite the provisions
of s. 16 (f) the court cannot make an order of imprisonment or commit a juvenile
to prison in default of payment of any financial order: section 10 (11) unless it
certified that he is so unruly a character or depraved that there is no other way of
dealing with him section 10 (2) and Section 16 (1) (I). R v Mereka (supra), R v
Kamanga 1964-66 ALR Mal. 317. The period of detention in prison is
indeterminate – subject to the Board of Visitors review. Be this as it may, the
court may order the parent or guardian to pay the fine or any other financial order.

At all times when making the final order the court should be guided by s. 4 of the
Act. The factors that the juveniles court can take into account when making the
final order are:

(i) the ascertainable wishes and feelings of the juvenile

(ii) the physical, emotional and educational

needs;

(iii) likely effects his/her circumstances;

(iv) age, sex, background and characteristics of what he/she has or is at

risk to suffer;
(v) capacity of parent, guardian or other relations to provide for his or
her needs;
 (vi) the range of options that are available to the court.

The court should also have regard to the rights of a child under s. 23 (3) and (4) and s. 42
(2) (g) of the Constitution; as to economic exploitation, treatment or work or punishment
that is likely to be hazardous, interfere with their education, or be harmful to their health
or their physical mental, spiritual or social development.25

The Institutional Orders:

The court may make institutional orders under s. 16 (1) (h). As a matter of law, an
institutional order cannot be made in respect of a child who is less than 10 years of age: s.
16 (2). As a matter of practice children under 14 years of age, are sent to Mpemba Boys
Home, and those over 14 years are sent to Chilwa Approved School. The approved
school order does not specify the period, this is left to the Board of Visitors to determine
whether the juvenile ought to be released or not.

It is pertinent to note that there is no institution for girls. The court must have regard to
other options available.

25
Even when the juvenile is ordered to undergo imprisonment, it should be for the shortest periods Rep v
Chikazinga 11 MLR 160 and s. 42 (2) (g) (ii) of the Constitution.
 Chapter 8

JUDGMENT

Once the prosecution address, the case is now ready for the court to make a finding
whether the charge has been proved or not proved and therefore convict or acquit the
accused person. This is called the “judgment”. Section 259 of the Code directs that the
court should deliver judgment in the manner provided in section 139 and 140 of the
Code.

General Rule:

Where the accused person pleads “not guilty” the general rule is that the prosecution must
prove every fact or circumstance stated in the indictment which is material and necessary
to constitute the offence charged. Except where there is a statutory exception: proviso to
s. 182 (1), the burden of proof lies on the prosecution to prove, beyond reasonable doubt,
not only that the offence was committed but that it was committed by the accused person.
In the case of Woolmington v DPP [1935] AC 481-482, Lord Chancellor Sankey said:

“Throughout the web of the English criminal law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt subject to statutory exception. If, at the end of and of the
whole of the cased, there is reasonable doubt, created by the evidence
given either by the prosecution or the prisoner, the prosecution has not
made out the case, the prisoner is entitled to an acquittal. No matter what
the charge or where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England, and
no attempt to whittle it down can be entertained.”

This is the approach adopted by our courts. In the case of Rep v Banda (SJ) [1968-70]
ALR Mal. 96 Smith, Ag. J defined what amounts to proof beyond reasonable doubt by
quoting Lord Denning’s judgment in Miller v Ministry of Pensions [1947] 2 All ER
373;

“That the degree is well settled. It need not reach certainty, but it must
carry a high degree of probability. Proof beyond reasonable doubt does not
mean proof beyond the shadow of doubt. The law would fail to protect the
community if it admitted ‘fanciful’ possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the sentence “of
course It is possible, but not in the least probable”, the case is proved
beyond reasonable doubt, but nothing short of that will suffice…”
Also read Bater v Bater (1950) 2 ALLER 459
There will be times when there will be abundance of evidence that the accused committed
the offence, or that it is not the accused who committed the offence. The court in such
circumstances will have little difficulty in arriving at a finding. Unfortunately, there are
few cases where the court will find no or little controversy. In the majority of the cases
the court has to come to a decision by evaluating the prosecution and the defence cases.
The judgment will contain directions on the burden and the standard of proof. I will
indicate that the prosecution have the burden to prove the case and that they have to
discharge that beyond reasonable doubt. It will also take into account its own assessment
of the witnesses, their evidence and demeanour. The rules of evidence on the admission
and evaluation of evidence will be applied when making the assessment. This is what
would be called the “totality of the evidence”. The court should not evaluate and assess
the evidence in the course of the trial as this may prejudice it. As was said in the
Woolmington case, this must be done “at the end and on the whole of the case.

Courts should guard against prejudice. We all have some biases and sometimes we may
not know it. Bias may be manifest in the court’s evaluation of the evidence on the basis
of gender, social or financial standing of the accused person or witnesses. The court
should not suffer its judgment to be influenced by the reaction of the parties or the
general public or the consequences of its decision. It should, at all times, be guided only
by the totality of the evidence, when deciding whether the accused is guilty or not guilty:
s. 259.
Contents of the Judgment:

Section 140 (1) of the code states:

“Every judgment shall, except as otherwise expressly provided by this

code, be in writing and shall contain the point or points for determination,
the decision thereon and reasons for this decision and shall be dated and
signed by the presiding officer.”

The exceptions to this subsection are provided in the proviso. Other than this, section 140
(1) must be strictly complied with when writing a judgment.

There are no rules provided in the Code on how a judgment must be written. There are
many and varied styles of writing judgments. What is important is that the judgment must
contain the point or points for determination, the decision and reasons therefore, and that
it must be signed and dated by the presiding officer. In case of an acquittal, the court need
not deal with every ingredient of the offence as long as the central issue of the offence is
disposed of Rep v Kaipsya [1966-68] ALR Mal. 291
‘The section which requires every judgment to contain the points for determination, the
decision thereon and the reasons for the decision, does not mean that in the case of an
acquittal the magistrate must deal with every point which would have to be decided in the
case of conviction where however a judgment acquitting an accused fails to make a
finding on the central issue, this amounts to substantial error of law which can result in
the reversal of the decision on appeal’

To establish what points need to be determined one must have a good understanding of
the elements of the offence charged. This is as important as when taking plea. If one does
not appreciate the elements of the offence, one will have difficulties in isolating issues
that need to be established. It is expected that the court will have carefully listened to the
evidence and acquainted itself with it in order to identify the facts that prove the elements
by analysing and evaluating the totality of the evidence which can only be done if one is
fully acquainted with the evidence. A well reasoned judgment is important because it
informs the accused the basis of the court’s decision and thereby satisfying his sense of
justice. It also directs the appellate or review court to the basis of the decision and makes
it easy for the court to decide on the propriety of the findings: Katola v Rep, Cr. App.
58 of 1970 (unreported). Other than that, since judgments are delivered Judgment.

Where the case has been adjourned for judgment, the accused must be brought up before
court for delivery of the same, if in custody, if he is on bail however, he will be required
to attend the delivery. The presence of the accused person can only be dispensed with
where the code so provides or where court intends to acquit him: s. 139 (2).

Where the parties have been duly notified of the date of delivery of the judgment but a
party does not appear, the court may proceed to deliver judgment not withstanding the
absence of that party. Such judgment will not be invalid. Nor would omission or defect in
the service invalidate it. What is of the essence is the notice: s. 139 (3). From the reading
of s. 139 (2) an accused on bail is “required” to be present, but should he default, the
court can proceed to deliver judgment in his absence, and in the event of a conviction, it
may issue a warrant of arrest.

S 139 (4) is a saving section which every good court would do well not to depend on.

The accused person may on application, and on a cost, be supplied with a copy of the
judgment, which may on request and or a cost be translated into his own language: s. 141.
The copy issued must be certified as a true copy of the original.

The judgment must be dated and signed by the presiding magistrate. The form that this
takes is:

“Pronounced in open Court this …………………….. day of

………………………2010, at …………………………………….

…………………………………
(Signature)”

If the accused person is acquitted, however, the Court need only indicate what offence he
is acquitted of: s. 140 (3). This is important not only for the record but also for the
purposes of autre fois plea.
 Chapter 9

JURY TRIAL

S 140 (1) of the Criminal Procedure and evidence Code reads as follows:

“The requirements of the section other than the requirement that

judgments be in writing and signed shall not apply to any judgment given
in accordance with the verdict of a jury.”

In a jury trial, therefore, the court does not render judgment in accordance with s. 140 (1)
of the Code. The court’s judgment is a formality confirming the verdict of the jury after
the summing –up and deliberations. The reasons for the judgment of the court will,
therefore, be discerned from the judge summing –up to the jury and the verdict of the jury
after deliberations.

The judge will sum-up the case to the jury soon after the closing speech by the parties.
The order of closing speeches will be according to s. 317 of the Code: the defence will
have the last word where the only defence witness was the accused person: s. 317 (1).
The state will have the last say where the defence called other witnesses than the accused
person: s. 317 (2).

Summing-Up by the Judge

S 319 of the Code provides that:

“When the case on both sides is closed, the judge shall, if necessary, sum-up the
law and the evidence in the case.”

The summing-up by the judge will, therefore, be divided into two parts:

(1) directions on the law; and

(2) Summary of evidence.

The judge will invariably open his summing-up by reminding the jury of the charge that
the accused person is standing trial for, his plea to the court and the respective roles of the
judge and the jury. This would have been told to them when the court was giving the
accused to the charge of the jury under s. 307 of the Code, which states that:

“The jury having been sworn, and a foreman having been elected or
appointed, the jury shall be informed of the charge against the accused.”

The duties of a judge in a jury trial are provided for in s. 320 of the Code. Other than
presiding over and controlling the proceedings, the judge is responsible for deciding all
questions of law. It will be in his summing-up to inform the jury that on all matters and
questions of law that he may refer to in his summing-up, they have to accept his views
without question as only he is the judge on all matters of the law. Section 320 (2),
however, states that:

“The judge may, if he thinks proper, in the course of summing-up, express

to the jury his opinion upon any question of fact or upon any question of
mixed law and fact relevant to the proceedings.”

The judge, therefore, may express his opinion on questions of fact or questions of law
and fact, but in his summing-up he should make it clear that the jury is not bound to
accept his opinion on questions of fact; that they are free to disregard or disagree with his
opinion. In the same vein, the judge will inform the jury that they should not be limited
by the facts on which he has expressed his opinion; they are free to take into account any
other fact that they feel is relevant to their decision and was omitted by the judge.

The duty of the jury is provided for by s. 321 of the Code. The judge will remind them
that they alone are the judges on all matters of fact; that the court will accept their
findings on matters of fact.

The judge’s summing-up will go on to give directions of the burden and the standard of
proof, and the ingredients of the offence which they will be required to consider. The
directions shall clearly state that the burden of proof lies on the prosecution and that this
has to be discharged beyond reasonable doubt. In the case of McVey (1988) Crim. LR
127, the court said that the judge must clearly recite the definition of the offence charged
than just directing the jury to the live issues that call to be decided. Be that as it may, the
court was against being too legalistic about these issues. In the case of Lawrence (1982)
AC 510, the court said:

“The purpose of a direction to a jury is not best achieved by a disquisition

on jurisprudence or philosophy or a universally applicable circular tour
around the area of law affected by the case. The search for universally
applicable definitions is often productive of more obscurity than light…..
A direction to a jury must be custom built to make the jury understand
their task in relation to a particular case. Of course, it must include
references to the burden of proof and the respective roles of jury and
judge. But it should also include a succinct but accurate summary of the
issues of fact to which a decision is required, a correct but concise
summary of the evidence and arguments on both sides, and a correct
statement of the inferences which the jury are entitled to draw from their
particular conclusions about the primary facts.”

The judge should generally avoid giving directions on matters that are not in issue. This
only tends to cloud the issues and confuse the jury. Be that as it may, it has been accepted
that where there is a possible defence which the parties have omitted to refer to, the judge
should raise it for the consideration of the jury: Watson (1992) Crim. LR 434.
When directing the jury on the law, the judge must also refer to the rules of evidence that
are applicable: where there is need for corroboration, how to apply rules of self-defence
or provocation.

Lastly, the judge’s summing-up will give a summary of the evidence. This must be a
concise summary as said in the Lawrence case (supra). At all times, however, should he
give an opinion on the facts of evidence, he should remember to remind the jury that they
are not bound by his opinion. It is the duty of the judge to state matters clearly,
impartially and logically, and not to indulge in inappropriate sarcasm or extravagant
comment: Berrada (1909) 91 Cr. App. R 131.

The Verdict

The summing-up will invariable close with the judge’s comments on the jury retiring to
consider their true verdict. The judge will direct the jury that their verdict could be
unanimous (12-0) or by majority (8-4)26 and that as long as the verdict is reached by the
valid majority, the court will accept.

The jury must be properly informed that the court will not require of them to give reasons
for their verdict.

The jury must be kept in complete freedom to deliberate fully and must not be put under
any pressure of any kind, McKenna (1960) 1 QB 411 at 422. Retiring the jury to reach a
verdict late is therefore improper. It would also be improper to inform the jury that if they
don’t agree they will be discharged and another trial will take place: Boyes (1991) Crim.
LR 747.

If a judge discovers an error in his summing-up, whether it be as a result of counsel’s

representations or otherwise, he should expressly acknowledge the error and tell the jury
to ignore it and then go on to give the correct direction: Cole(1993) Crim. LR 300.

The court may direct the jury to consider its verdict further. 27 This normally happens
when the jury return a verdict where there is a direction on alternative verdicts, but the
foreman is unable to indicate on what offence the verdict has been returned. The court
will briefly remind the jury the directions on that point and ask that they consider the
verdict further.

26
S. 321F of the Code, see also s. 307 and s. 321 E.
27
S. 321 D ibid
Once the jury has retired and returned their true verdict, the judgment will render a
judgment in conformity with the verdict of the jury.

If the jury is unable to reach a verdict after a reasonable time for discussion is given, the
court will call the jury in and enquire from the foreman if there is a prospect of reaching a
verdict. The court must be careful not to convey any impression of impatience.

Where the jury fails to reach a verdict, it will be discharged and the accused will be tried
by another jury.28 From the practice in other jurisdictions, if the second jury too fails to
reach a verdict, the State will offer no evidence against the accused.29

Where there is more than one count or accused persons, the jury must return a verdict in
respect of each count and each accused person named.30

The jury verdict will be returned in open court by the foreman. The Registrar of the High
Court or his deputy will record the verdict after ascertaining from the foreman the verdict
and how it has been returned: unanimous or by majority.

28
S. 321 F ibid
29
Blackston’s Criminal Practice, 1995, 1360
30
S. 321 E
 Chapter 10

ALTERNATIVE VERDICTS

The general rule is that once the court complies with s. 254, s. 313 of the Code or s. 14
(6) of the Children and Young Persons Act; by calling the accused person to give his
defence, the accused person can only be convicted for the offence with which he is
charged. The rationale is that the accused person must be given opportunity to know the
charge against him and defend himself. The prosecution therefore is barred from
amending the charge once accused is called to give his defence. 31 Be this as it may, the
court is, in certain circumstances, allowed to convict the accused of the offence with
which he has not been charged. This is called “alternative verdicts”. They can be divided
with attempts, minor offences or alternative verdicts.

Attempts

As we already saw, earlier, it is open to the court to convict an accused of an attempt to

commit the offence that he was charged with, where the actual offence has not been
proved, but the attempt has.32

Minor Offences

It is open to the court to convict for a minor offence to the one charge under s. 150. This
section provides for two ways of finding a minor offence. S. 150 (1) directs the court to
consider the particulars, or ingredients of the offence charged. If only some of them are
proved, and those proved constitute a minor offence then it is open to the court to convict
for the minor offence established. Using this formula the offence need not be minor in
terms of sentence, it only need be minor in terms of being a component of the offence
charged. This would be a more rational way to look at the decision in Tarmahomed v
R33 where the court found that the offence of failing to declare dutible goods was minor
to smuggling although they both carried the same sentence

S. 150 (2) provides that when the facts proved reduce the offence to a minor offence then
it is open to the court to convict of the minor offence. Such minor offence however, must
not only be minor in terms of the sentence, but cognate to the major offence charged:
Jones v R34. In the case of Mbalule v Rep35 the court held that negligence by a public
officer under s. 224 was not minor to theft by a person employed in the public service,
because the two offences were not of the same genus.

31
S. 151 of the Code. See also Rep v Banda 1971-72 ALR Mal. 280; Newman’s Manual p. 205
32
S. 152 ibid
33
1964-66 ALR Mal. 457. see also the “express allegation of another offence”, Blackstones Criminal
Practice 1995 – the “blue-pencil test”. Lillis [1972] 2 KB 236
34
1923-60 ALR Mal. 797
35
1966-68 ALR Mal. 272 See also Newman’s manual p. 206
The case of Rep v Richard36 brings in another angle to s. 150 (2). The court held that
“minor offence” need not be “cognate” as cognate is not part of or statute. This case
discussed the case authorities on minor offences under s. 150 (2). The court held that:-

“The test the court should apply when exercising its discretion is whether
the accused person cannot reasonably be said to have had a clear
opportunity of making his defence to the alternative offence”37

The court was of the view that this would be a matter of fact on the evidence, whether the
accused did or did not have an opportunity to make a defence. In this case the court
upheld a conviction for intimidation on a charge of arson.

Alternative Verdicts

The other alternative verdicts are provided for under s. 153-157 of the Code. They
provide for alternative verdicts in:

(a) homicide of children

(b) manslaughter for driving a motor vehicle

(c) rape and kindred offences

(d) burglary and kindred offences

(e) stealing and kindred offences

The alternative verdicts set rule in the said section follow the minor offence concept of s.
150 (2) except those in s. 156 on burglary and kindred offences. This section is so wide
that it provides that for a charge for any offence in Chapter XXIX of the Penal Code, one
can be convicted of any other offence proved in that chapter even if not charged with it.
One therefore will be convicted of the offence proved whether it is minor or not.

Chapter 11
TRIAL PROCEDURE IN THE HIGH COURT

As we said earlier when considering jurisdiction, the High Court has unlimited original
jurisdiction over criminal cases: s. 7 of the Code. Be this as it may, the High Court will
ordinarily only try cases that have been committed to it for trial by the Subordinate
Courts: s. 67 of the code. Trials in the High Court are by jury except where the Minister
may direct otherwise: s. 294.

JURORS
36
8 MLR 297
37
Ibid, p. 301 lines 19-22
Every person aged between 21 years and sixty, subject to the exemption in s. 296 is liable
to serve as a juror.38 The Registrar of the High court maintains a jury list for each district
in Malawi. Jurors to serve on any trial from any district are selected from that district’s
jury list.39

CHARGE

The charge presented to the high Court will bear the same particulars as the charge
presented before a subordinate court and will follow the same rules for drafting. The only
difference is that the charge will be validated by the signatures of the DPP or the
Attorney General or any other officer authorised in that behalf and of the Registrar of the
High Court: s. 302 (3) of the Code.

PLEA

When the High Court is ready to start the trial the accused appears or is brought before
the court. The charge will be read and explained to him and he will be asked if he admits
or denies the truth of the charge.40 If he admits the charge the court will take down what
he says, as nearly as possible, in the words used by him. The court will have to ascertain
that he admits each and every ingredient of the offence and then enter a plea of guilty.
The court will then proceed in the same manner as the plea of guilty, procedure in the
subordinate court. If convicted it will sentence him after hearing his antecedents and plea
in mitigation

Where plea of guilty is taken after jurors have already been summoned, the juror for that
case will be discharged before they are empanelled.

Where accused denies the truth of the charge the court will enter a plea of not guilty and
proceed to trial.41 It is a requirement in the High Court trial that the statements or
summary thereof must be served on either party within 21 clear days before the date of
trial: s. 293 of the court, the prosecution and the defence, therefore are all aware of what
evidence will be adduced.

EMPANELLING THE JURY

The court will then empanel a jury for the trial. The court will empanel a jury of twelve
jurors selected, at random, from the list of Jurors summoned for that case. 42 The accused
person has a right to object to the service of any juror for cause only. 43 Although not
specifically provided for, it would appear that the common law right of challenge to the

38
S. 295
39
S. 297
40
S. 303
41
S. 303
42
See s. 294, s. 304 (2)
43
S. 304 ((3)
array exists:- where accused can challenge to the whole jury summoned on grounds of
bias in the jury selection.44

Once a jury has been empanelled it will be sworn in and will be requested to elect a
foreman from one of their numbers. Where the jury fails to elect its own foreman, after
reasonable time for deliberation has been allowed, the court may appoint one among their
numbers to be a foreman.45 The duty of the foreman is to preside over the deliberations of
the jury. He will also be one through whom the court will speak to the jury and vice
versa.46 Jurors can be discharge due to death, issues or non-attendance. But the court has
powers to order the trial to proceed as long as the number of jurors does not fall below
eight persons: s. 308 of the Code.

Giving accused in charge of the Jury

When the foreman has been elected or appointed, the judge will then inform the jury of
the charge against the accused person. 47 The Judge will also inform and explain to the
jury the different roles that the judge and jury will play, and generally how the trial will
be conducted. The Judge will further explain the role of the prosecuting and defending
counsel. He will inform them as to what amounts to evidence. Then direct them to relax
and listen to the evidence.

Case for the Prosecution

After the accused has been given in charge of the Jury, the court will proceed to hear
evidence of the prosecution.

Like in the subordinate court the case for the prosecution can be divided into the opening
address and the evidence.

Opening Address

The opening address by the prosecution is governed by s. 311 of the Code. Unlike in the
subordinate court, this section expressly provides that the opening address shall state
“shortly the nature of the offence and the evidence by which the prosecution proposes to
prove the guilt of the accused”. The making of an opening address however is
discretionary. By convention, whatever the prosecution brings up in their opening address
will have to be supported by the evidence they will call.

The Evidence

After the opening address the prosecution will proceed to call witnesses for the State. The
State generally can only call witnesses whose statements of evidence are available under
44
Blackstone
45
S. 305
46
S. 306
47
S. 307
s. 293 or s. 175. The calling of any other witness is on notice to the defence and the
Registrar. In any case the notice should notify the defence and the Registrar the name and
address of the witness and must include the substance of the evidence he will give. What
amounts to reasonable notice is a matter of fact which the court has to decide. It is
important to bear in mind therefore that this call for the court’s discretion.

The prosecution is not obliged to call all the witnesses that gave evidence to the
preliminary enquiry or whose statements have been supplied to the Registrar under s.
293. However, should they not call any of the witnesses, the court must be so informed
and the remaining witnesses may be available for the defence.

The witnesses for the prosecution will be examined following the same procedure and
rules as in the subordinate courts. The statement of evidence of the accused person taken
during committal may be tendered as evidence by the State.

Case for the Defence

The defence case can be divided into the opening address and the evidence.

Opening Address

The defence opening address is provided for under s. 314 (1) of the Code. The opening
address will state the facts or law on which the defence intends to rely and may also
contain such comments as the defence may wish to make on the evidence of the
prosecution. Usually, the comments will pertain to the weakness of the prosecution
evidence which they tend to exploit to establish the defence.

The Evidence

After making the opening speech the defence will proceed to call evidence. In view of the
decision in Sudi Sulaimana’s case, the defence still retain the right to conduct their
defence following the four options available to the defence in the subordinate court. The
position at defence: s. 313 and s. 314 of the Code is the same as in s. 256 in the
subordinate court. The courts have now come, in practice to give effect to s. 42 (2) (f) of
the Constitution and allows accused to exercise his right to remain silent.

The defence has less restriction on calling of witness. It is not restricted to calling
witnesses who were bound over; s. 315, if those witnesses are within the courts precincts.
This section operates more like s. 255 (1) in respect of the subordinate court procedure.
However, for witnesses not before the court, the defence is only entitled, as of right, to
summon those witnesses that they informed the court about during committal
proceedings.

The witnesses for the defence will be examined following the same procedure and rules
as are applicable in the subordinate court.
Where there is more than one accused person, and accused will conduct his defence in the
order that they appear on the charge. The order of cross-examination will be the same as
that followed in the subordinate court.

When the defence finishes calling evidence they must so inform the court.

Re-opening the Prosecution’s case

Like in the subordinate court, s. 257, the prosecution may be allowed to re-open their
case where the defence raises new matters which the prosecution could not, by exercising
reasonable diligence, have foreseen: s. 314. Again, the court must exercise this discretion
with great caution as it may have the effect of favouring the prosecution. Any evidence
called will be subject to cross-examination by the defence.

Closing speeches

Both parties, the prosecution and the defence, have a right to make closing speeches
summing up their case. The order of the speeches varies and is governed by s. 317 of the
Code.

The purpose of the closing speeches, like in the subordinate court will highlight the
strength of the party case or the weakness of the other side’s case and by arguments on
points of fact or law, show that their case has been made out.

Again, what is contained in the speeches must have been substantiated by the evidence.
The latitude allowed to the defence to hypothesize and comment on co-accused silence is
also available to the defence in the High Court.

S. 317 provide that where the accused calls no witness than himself, he shall submit last.
However, where accused calls other witnesses than himself, the prosecution shall submit
last. The order of closing speeches therefore will vary according to how the defence case
has been conducted.

When the closing speeches are finished, the case will be ready for judgment.
 Chapter 12

TRIAL PROCEDURE IN THE JUVENILE COURT

The Constitution accords a special position to children; including those that are in
conflict with the law.48 The fundamental principles upon which the constitution is
founded do not discriminate against children. They are given equal recognition as the
adults and other minorities.49 Further the principles of national policy provide that the
Government shall seek to encourage and promote conditions that are conducive to the full
development of children into productive and responsible members of
society.50Notwithstanding the definition of a child as a person under the age of 16 years,
the Children and Young Persons Act, stipulate a “child” as a person who is below 14
years of age and “young person” as a person who is above 14 years but below 18 years
of age.51

The category of persons defined as a “child” or “Young Person” in the Children and
Young Persons Act is called “juveniles”. 52 Notwithstanding the definition of the child in
s. 23 (5) of the constitution, one would anticipate that the six additional rights that accrue
to a child under s. 42 (2) (g) accrue to juveniles.

The criminal justice system therefore recognizes juveniles as a special group requiring
different and special treatment. The dominant reason for the special treatment of juvenile
is in s. 4 of the Children and Young Persons Act:-

“Every juvenile court in dealing with a juvenile who is brought before it,
either as being in need of care or protection, as an offender or otherwise,
shall have regard to the welfare of the juvenile and in a proper case take
steps for removing him from undesirable surroundings, and for securing
that proper provision is made for his education and training.”

This section in the essence empowers the state to intervene to guide and assist families
that have juvenile delinquents. The intervention must be premised on the need to promote
the welfare of the juvenile. The State will therefore give assistance with care, treatment,
correction, education or reform of the juvenile. The welfare principle has nothing to do
with the seriousness of the offence, the severity of the anticipated punishment, protection
of public or indeed, the other factors that dominate the criminal justice system in the trial
of an adult.

Trial

48
S. 42 (2) (g) of the Constitution
49
S. 12 ibid
50
S. 13 (h) ibid
51
S. 2 Children and Young Offenders Act
52
S. 2 ibid
Subject to s. 6 of the Children and Young Persons Act, all juvenile trials must be heard
by a juvenile court. A juvenile court will sit in camera.53 Even when the High Court is
trying a juvenile, it will sit in camera. 54 The only exception is where the juvenile is jointly
tried with an adult.

The court may require parents of the juvenile to attend trial, 55 and by law the names and
identity of the juvenile are protected. These can only be published with the authority of
the court.56

As a matter of practice the juvenile court may dispense with the usual formalities of a
trial that are observed in the trial of an adult and adopt a more informal mode in order to
put the juvenile at ease. The juvenile therefore, need not be in the dock and it may be
referred to by its given name.

Notwithstanding s. 2 of the Children and Young Persons Act, a young offender who is
over 18 years, but committed the offence in issue while he was a juvenile will be treated
as a juvenile: see Rep v Malanda.57

Procedure

The trial procedure will follow s. 14 of the Act. This notwithstanding, the charge or
charges will be drafted in accordance with s. 126, s. 127 and s. 128 of the Criminal
Procedure and Evidence Code. In order for the court to sit as a juvenile court, it must be
satisfied that the person before it is a juvenile. It should always be borne in mind that the
age of the accused on the charge sheet is administrative. 58 When asked his age the person
states that he is in fact a juvenile, or the court suspect him to be a juvenile then the age
must be confirmed if necessary by medical examination.59

The charge will be read and explained to the juvenile in a language suitable to his age and
he will be asked if he admits the facts constituting the offence. If he denied then the
witnesses will be called and heard. There appears to requirement to enter plea of “Guilty”
or “Not Guilty”60 although in practice the court does formally enter a plea.

The juvenile may cross-examine the witnesses, or they may be examined on his behalf by
his parent, guardian, persons responsible for conducting his defence or by his counsel. 61
After the prosecution closes its case, the court will consider the evidence adduced and
decide whether there is a case made out sufficient to require him to make a defence on

53
S. 7 (2) ibid
54
S. 6 (ii) ibid. see also s. 71 of the CP&EC
55
S. 5 ibid
56
S. 8 ibid
57
12 MLR 213
58
R. v Kamanga 1964-66 ALR Mal. 317
59
Kamanga (supra), Malanda (supra). See also s. 15 of the Children and Young Persons Act
60
Note must be taken of the restriction of the use of the words “conviction and “sentence” in s. 3 of the
Children and Young Persons Act.
61
Guardian, person responsible for him in conducting his defence or by his counsel
the offence charge or any offence to which it can amend the charge. 62 The procedure here
is not specific and the only assumption is that the amendment and the procedure
following amendment will be the same as that in the subordinate court.

If the court finds a case to answer, it will so inform the juvenile and explain the
substances of the evidence against him and points that specifically telling him or require
his explanation. It is significant to note that this is a departure from the subordinate court
procedure which does not require any explanation if the court finds a case to answer. The
juvenile will then be informed that he is required to make a defence by giving evidence
and calling witnesses, if any.63

The requirements of s. 14 (9) are the same as s. 256 and s. 314 of the Criminal Procedure
and Evidence code. Suffice it to say, the juvenile’s right to remain silent will have to be
explained in view of the Constitution. 64 The case for the juvenile will follow the four
options that are available to the defence when conducting the defence case. If there is
more than one juvenile the order of examination in the defence case will be the same as
in the subordinate and High Court.

The juvenile, like in s. 256 and s. 314 of the Criminal Procedure and Evidence code, will
be required to give his evidence first if he is calling other witnesses, than himself. The
requirement of “…. If of an age to understand the nature and consequences of the oath or
affirmation” reflects the special procedure required to be followed on receipt of evidence
from children. The court must be satisfied that the child understands the nature and
consequences of an oath before receiving its evidence on oath. 65 The court therefore has
to conduct a “voire dire” before deciding whether to receive the juvenile accused’s
evidence on oath or not.

The examination of witnesses for the prosecution and the defence will follow the same
format as in a subordinate court trial of an adult. The rules governing what questions may
be asked during what examination are the same.

When the juvenile admits the truth of the offence the court will proceed in accordance
with s. 14 (13 – 14). The procedure provided is the same as that, tenable after the court
finds that the offence is proved against the juvenile.

The section does not specify the procedure after admission of the offence. Be this as it
may, the admission will have to be unequivocal. All the ingredients of the offence
therefore must be put to the juvenile to ensure and admit the offence without
qualification. The court will formally record the admission, then follow the “plea of
guilty procedure” as in a subordinate court trial for an adult.

62
Ss. 6 and 7 of ibid
63
S. 14 (8) ibid
64
S. 42 (2) (g) (iii)
65
Makhanyanga v R 1961-63 ALR Mal. 491
When the court ascertains that he admits the facts outlined to be true, the court will
formally enter a finding that the offence “against the juvenile is proved”. Again regard
must be had to s. 3 that the word “conviction” should not be used.

The court will then proceed to hear the antecedents of the juvenile which will invariably
include the report of the social welfare officer, and may include special medical
examination or observation report. This subsection is very wide bearing in mind the
vulnerability of the child and the welfare principle on how to treat him if proven to have
committed an offence.

The antecedent or reports will be explained to the juvenile or his parent or guardian and
he has a right to reply. Further to this they may address the court on extenuating
circumstances or in mitigation of the offence before the court makes the final order.
Notwithstanding that the court may receive the report, it retains the discretion to call the
makers of the reports to testify in person and/or to be cross-examined.

Finally, regard must be had to s. 14 (15) which empowers the court to exclude parents or
guardians of the juvenile from the court if it is considered to be in the interest of justice to
do so. This may be necessary to enable a juvenile to express himself freely without the
pressure of censor from his parents.

Where the juvenile denies the charge, after the hearing of the witnesses for the
prosecution and the defence if any, the court will proceed to deliver judgment. 66 The
judgment will take the format provided in Criminal Procedure and Evidence Code. This
will be looked at later.

It is noteworthy that s. 14 does not provide for opening or closing addresses. Strictly
speaking therefore the court will not be obliged to allow them. However, should the court
be inclined to do so the juvenile court, other than the High Court sitting over a juvenile
case, will follow the format provided for addresses in the subordinate court in respect of a
trial of an adult.

66
S. 14 (12) CYPA
 Chapter 13

EXAMINATION OF WITNESSES

Summoning of witnesses

Once the prosecutor decides to prosecute the accused, it is his or her responsibility to
prove his case; he will decide the witnesses to call in order to prove the prosecution case.
The prosecution must secure the attendance of all the witnesses it intends to call as
prosecution witnesses. To achieve this, s.195 of the Criminal Procedure and Evidence
Code provides that if it appears that evidence which is material to any criminal cause or
matter before, or pending before, any court can be given by or is in the possession of, any
person, it is lawful for any police office of the rank of Assistant Superintendent or above,
or the Registrar of the High Court, or the Magistrate dealing with the case to issue a
summons to that person requiring his attendance before the court as a witness, or
requiring him to produce to court all specified documents and writings in his possession
or power which may be described or sufficiently described in the summons.

If the witness fails to appear in answer to the summons, without sufficient excuse, and the
court is satisfied that he or she was properly served with the summons within a reasonable
time, the court may issue a warrant for his or arrest so that he or she may be brought
before at such time and place as is specified in the warrant of arrest. (S.196 of the Code).
Similarly, if the court is satisfied by evidence on oath that a person who is supposed to
give evidence will not attend unless compelled to do so, the court may issue a warrant for
the arrest and production of the witness before the court at a time and date as is specified
in the warrant.

When a person is arrested under a warrant, the court may release him until he is required to
testify, upon his furnishing such security as is deemed sufficient by the court or by a
police officer of the rank of Assistant Superintendent or above for his appearance at the
hearing of the case. If the witness fails to furnish any security, the court may order him to be
detained and be produced at the hearing of the case. (s. 198 of the Code).

Where the proposed witness is serving a custodial sentence in prison, the court may
issue an order to the officer in-charge of such prison requiring him to bring the prisoner
to court at such time and place as is specified in the order so that the court can examine
him. (s.199 of the Code).
S. 200 of the Code provides that if any person who has been summoned TO
attend, without lawful excuse, fails to attend as summoned, or who, having attended,
departs without permission of the court, or fails to attend after an adjournment of the
court, after being ordered to attend, he or she is liable, by order of the court to a fine of
K10,000.00 Such fine will be levied by attachment and sale of any movable
property of the witness if he or she fails to pay the fine. And in default of recovery of
the fine by attachment and sale of the property, the witness; may, by order of the
court, be imprisoned as a civil prisoner for a period of fifteen days unless the fine is
paid before the expiration of the said term. However, for a good cause shown the High
Court may remit or reduce any fine imposed by the subordinate court.

In the case of Republic v Mafiyo 1971-72 ALR Mal. 20 the then Chief Skinner J
clarified the procedure to be followed when dealing with a witness who has failed to
attend. Briefly the salient facts of the case were as follows: at the accused's trial in the
Third Grade Magistrate's Court, Blantyre, a witness who had been summoned failed to
attend and the trial was adjourned. After the adjournment the prosecutor applied for a
warrant of arrest in respect of the witness and it was issued. When the witness was
subsequently brought before the court, the magistrate purported to convict her for non-
attendance, without inquiring whether or not she had been served with the summons,
fined her K10 and suspended the operation of the fine under s. 339 of the Code. The
witness was released and subsequently another summons was issued ordering her to
attend on a specific date. She failed to attend and she was brought before another third
grade magistrate who, without hearing any evidence or ascertaining that the witness had
been served with the summons, activated the suspended sentence of the-fine and
ordered her to serve three months' imprisonment with hard labour in default of
payment.

On confirmation of the main proceedings the court, inter alia, considered the procedure
to be followed before a warrant of arrest is issued in such a case, the procedure to be
followed before fining a witness for non attendance, the propriety of suspending a
sentence of a fine, and the limit of imprisonment in default of paying a fine for non-
attendance. The Judge held that the magistrate was wrong in issuing the warrant
without as it is necessary for the court to be satisfied by evidence on oath that the
witness will not attend and the magistrate heard no evidence whatsoever. The Judge said
that the usual evidence which the court must hear is that a witness summons has been
served on the witness and he has refused to obey the summons. The Judge observed
that it was clear that the magistrate did not read s. 197 of the Code before making his
order because if he had, the section which is clear and explicit, would have drawn his
attention to the necessity to take evidence. He further found that the magistrate was
wrong to suspend the sentence of a fine under s. 339 of the Code. The section deals
with suspending sentences of imprisonment and does not authorise the suspension of a
fine. The Judge also observed that, in respect of the second arrest for failing to attend
court the second magistrate was wrong to impose a three months imprisonment
sentence when a maximum sentence of imprisonment which can be imposed in default
of payment of a fine imposed on a person for non-attendance as a witness is fifteen day
civil imprisonment. He said that normally when a witness is brought before the court on
the warrant, normally he or she gives an explanation or apology and in most cases
the court is of the opinion that the arrest was sufficient punishment. However, in some
cases it may be proper to impose a fine for non attendance. In such cases an inquiry is
made under s. 200 of the Code. Such inquiries are conducted in an informal manner; but
they must be such as will satisfy the magistrate that the defaulting witness was served,
with the summons and that, he had absented himself without lawful excuse.

Before a formal decision is reached, the witness should be called upon to show cause
why he should not be punished.

Presence of Witness In Court

The Code is silent on whether all witnesses should remain outside the courtroom until
called to testify. Nevertheless, the usual practice for witnesses is to be ordered outside
court before the hearing begins, the reason being that such witnesses should not be
influenced, when they come to give evidence, by what other witnesses have said.

If the court discovers that a witness is present in court before being called it would
appear that such fact will not affect his competency as a witnessed though it may have a
bearing on the weight to be attached to his or her evidence.

In the case of R v Nzina 1966-68 ALR Mal. 263 the accused was charged with rape
contrary to section 138 of the Penal Code. At the trial one of the witnesses remained in
court after a constable had ordered all the witnesses in the case to; withdraw. The
magistrate ruled that this witness was disqualified from giving evidence. The accused
was convicted of rape and sentenced to five years imprisonment with hard labour. He
did not appeal. The record came to the attention of the court in confirmation proceedings.
On appeal Grain J. Observed that the witness who remained in court was not ordered to
leave by the court but remained in court after the constable announced that (witnesses in
the case should leave the court. The witness admitted that he had heard the constable
but stated, on oath, that he believed the request was to other witnesses. The court held
that while it is the usual practice to order witnesses in a case out of court when the case is
called for hearing, this is a rule of practice and not of law and where no order is given it
seems witnesses may remain in court. And where a witness remains in court after the
witnesses in the case have been ordered to leave the court, his or her conduct will be
subject to observation as to his conduct, which could affect weight to be given to the
evidence, but not affect his competency to give evidence.

Oaths and Affirmation

Subject to one exception, relating to the unsworn evidence of children, the testimony of a
witness in a criminal trial is not admissible unless he has previously been sworn to
tell the truth. The law relating to the administration of oaths and affirmations in
Malawi is set out in Section 6(1) of the Oaths, Affirmations and Declarations Act. This
section provides that the witness will first be asked whether he or she believes in
Almighty God, and if so, whether he or she agrees to make the oath . If he answers both
questions affirmatively, he or she will be required to make the oath with his or her right
hand uplifted. In all other cases the witness will be required to affirm.

In summary corroboration is required as a matter of law where the evidence of a child is

given unsworn under s. 6 of the Oaths, Affirmations and Declarations Act Cap. 4:07. And
as a matter of practice a court should look for corroboration of a child of immature age
even though sworn.

Form of Oath

“
I swear by Almighty God that the evidence I shall give shall be the truth,
the whole truth and nothing but the truth.”

Form of Affirmation
“I do solemnly, sincerely and truly declare and affirm that the evidence I
shall give will be the truth, the whole truth and nothing but the truth.”
Recording and Translating Evidence

S. 163 of the Code, which deals with the manner by which evidence is recorded in
inquiries and trials before a subordinate court, provides that the evidence of each witness
should be recorded in narrative form in the language of the court by the magistrate, and be
signed by him. Although the section does permit a magistrate to supervise the recording of
evidence by someone else, in practice he or she will, him/herself, record all the evidence in
longhand. Ordinarily the evidence should not be taken in the form of questions and
answers. All, the same the magistrate in his discretion may take down any particular
question and answer.

Frequently, the services of an interpreter will be required, S. 164 of the Code states that if an
accused or his counsel does not understand the language in which any evidence is given, it
will be translated. Double interpretation may be necessary where, for example, the accused
speaks only Chichewa, and the witness only Yao. Where interpretation must be performed
by someone other than an official interpreter, the magistrate should first satisfy himself that
such person is competent to so translate and then require him to take the interpreter's oath,
or to affirm.

Evidence taken in any inquiry or trial, unless the law provides otherwise, should be
taken in the presence of the accused or in the presence of his Counsel, as the case may be.
The court has discretion to interpret any document or any part of the document as it
deems fit.

The importance of translation being of a very high standard cannot, be over

emphasized, and this is particularly so on a case where the magistrate is not fluent in all
the languages spoken during the course of the trial.

COMPETENCE AND COMPELLAB1LITY

As a general rule, all persons are competent (lawfully entitled) to give evidence before a
court and may be compelled, to give evidence subject to a claim of privilege. In other
words a witness is competent if he may lawfully-give evidence and compellable if he
may lawfully be required to give evidence. The law presumes that all persons are
competent to testify unless the court considers otherwise. S. 210 of the Code gives some
certain classes of persons who are wholly or partly precluded from giving evidence on
account of being "prevented from understanding the questions put to them, or from
giving rational answers to those questions, by immature or extreme, old age, disease,
whether of mind or body, or any other cause of the same kind …”

Archbold, 1995 Volume 1 states that, competent witnesses are usually but not necessarily
compellable. Once the issue of competency or compellability is raised in relation to
witnesses proposed to be called by the prosecution, it is for the prosecution to prove
competency or compellability beyond reasonable doubt : R v, Yacoob, 12 Cr. App. R
313, C. A. However, although there is no authority as to the standard of proof when
the issue of competency or compellability is raised by the prosecution or the co-
defendant in relation to witnesses called by the defendant, Archbold says that the onus
lies on the defendant but the standard should be the civil standard , namely proof on a
balance of probabilities, i.e. when standard of proof lies on defence, the defence will
have proved a fact if the court can conclude that it is “more probably than not” or
“more likely than not,” that the fact exists. It is the duty of the court to decide on the
competency of a witness. This is usually done by examining the witness on the voir
dire. It was said in the case of Yacoob that the beginning of the trial is the appropriate
time for the issue of the competence and compellability of a prosecution witness to be
raised and determined. Whilst this may be convenient, the court recognised that there
is no rule of law to this effect. It, however seems prudent, that the question of whether
a witness is competent and compellable should be determined before the witness starts
giving evidence.

(I) Dumb Witness

Section 211 of the code permits a witness who is unable to speak to give his
evidence in any manner which is intelligible, as by writing or signs; but such
writing must be written and the signs must be made in open court. The evidence
so given shall be deemed to be oral evidence. Paragraph 8 – 29 Archbold 1995
Volume 1 provides that a person who is deaf and dumb is competent if he can be
made to understand the nature of an oath, and if intelligence can be conveyed to
and received from him by means of signs, and he may be examined through the
medium of a sworn interpreter, who understands his signs. A dumb man who is
not deaf is sworn by signs, and then the interpreter is sworn to interpret them. If a
dumb can write, he can be allowed to write down his evidence.

(II) Persons of Unsound mind

Ordinarily no witness is competent who is prevented by reason of mental

illness, drunkenness and the like from understanding the nature of an oath
and giving rational testimony. Whether or not persons suffering from mental
disabilities are competent to testify, will depend upon the nature and the extent of
their illness. A person may be insane in one matter but as long as he understands the
nature and the meaning of the oath he may be capable of testifying as to the matters
unaffected by his condition. In R v Hill (1851) 5 Cox C. C. 250, the witness, a
mental defective, witnessed a homicide by an attendant in an asylum. The court was
 satisfied that his delusion did not affect his understanding of the oath and he was,
therefore, allowed to testify and describe what he had seen. It is important that the
court should investigate whether or not the witness is competent in the sense being
able to understand the nature of the proceedings. Provided the witness has a
sufficient appreciation of the seriousness of the occasion and a realization that
taking the oath involves something more than the duty to tell the truth in
ordinary, day-to-day life, and provided that the witness has no objection to be
sworn, he should be sworn.

(iii) Children

A child, at common law, is any person under the age of 21 years. And for purposes of
our Constitution children are those people under the age of sixteen years. The court
is concerned, initially, to find out whether the child is competent to give sworn
evidence, and provided the court is satisfied that the child understands the nature of
the judicial oath or affirmation, he may be sworn or affirmed in the normal way
and treated as an ordinary witness. Where, however, the court is not satisfied that the
child understands the nature of the oath or affirmation the proviso to section 6 (1) of
the Oaths, Affirmations and Declarations Act: Cap. 4:07 states that the court may all
unsworn evidence to be given provided that the child is of "immature years" and
possesses sufficient intelligence to justify the reception of his evidence.
The record should show that the magistrate has, by voir dire (by looking at and
speaking with the child) examination, questioned the child to establish his age,
intelligence, religious beliefs and ability to understand tile meaning of the oath or
affirmation. The importance of voir dire being conducted and findings recorded,
was explained by
Forbes F. J. in Makhanganya v. R. 1961-63 ALRMal. 491 at p. 497:

“Unless a voir dire is carried out as I have indicated, a trial

court cannot be satisfied that a child is fit to be sworn, or even to
give evidence unsworn and, unless the voir dire is recorded, an
appellate court cannot be satisfied that the trial court has
appreciated and carried out its duly. "

Where the court allows unsworn evidence to be given he should record that he
is satisfied that the child is of immature age or of tender years and is
sufficiently intelligent to understand the difference between truth and falsehood
and the need to speak the truth. Judges have tried to avoid laying down precisely
what is meant by the term "immature age." In R. V. Tarakinyu Confirmation
Case No. 213, 1977 Mal. (unreported). Chatsika J. as he then was doubted
whether a small child of five years could possess a sufficient degree of
intelligence to testify. In Makhanganya's case, the Judge considered that
a child ceases to be of
tender years having attained the age of fourteen.

Whether a child is permitted to give sworn or unsworn evidence may be crucial to

the: outcome "of the case. Section 6(2) of the Oaths, Affirmations and
Declarations Act-provides that where unsworn evidence is received from a
person of immature age, the accused must not be convicted on such
evidence in the absence of corroboration (some independent evidence
which turns to confirm the child’s testimony). For practical purposes
relating to corroboration a child under the age of 14 years of age should
normally be regarded of tender years or immature age. And as a matter of
practice a court should look for corroboration of the evidence of a child of
immature age even though sworn. However, corroboration is required as a
matter of law where the evidence of a child is given unsworn under
section 6 of Oaths, Affirmations and Declarations Act.
 The duty of the court when faced with a child witness is:-

(1) to inquire as to the age of the child and, if necessary to assess its
age;

(2) to investigate, by questioning the child, whether it understands the

meaning of the oath ; and

(3) if not, then to investigate whether the child understands the

difference between truth and falsehood and the need to tell the
truth.

The record should show these inquiries and the conclusion reached by the
court.

(iv) Accused Persons

The accused cannot be called as a witness for the prosecution against himself because of
the very nature of the accusatory system of criminal justice. He is, of course, a competent
witness for the defence and the effect of section 256 (1) of the Code is that he is rendered
compellable.

“…the accused shall, from the witness box, … and upon oath, give his
evidence and answer any question or produce anything lawfully put to or
required of him by the court or in cross-examination.”

If the accused refuses to be sworn, given evidence, answer any question lawfully put to
him or produce any document or thing which he is required to produce, this fact may be
commented upon by the prosecution and may be taken into account by the court in
reaching its decision. The court cannot, however, regard such refusal as a direct or
indirect admission of guilt.

Although under section 242 of the Code an accomplice is a competent and compellable
witness for the prosecution, the established practice is that such person should not be
called by the prosecution where he is joined in the same charge as the accused. In
Kalima v Rep 1966-68 ALR Mal. 601 Southworth C.J. explained that if a co-accused is
to be relied upon as a prosecution witness, he should either:

(I) have been convicted on his own plea of guilty; or

(II) have been acquitted after no evidence has been ordered; or

 (III) have had the charge against him discontinued or withdrawn.

In Banda v Rep Bolt J., explaining the rationale behind this rule said:

“…when a principal offender is called as a witness for the prosecution it

should be made clear that he himself has been brought to justice or has
been sentenced for the offence, or alternatively that the State does not
intend to prosecute him. If this is not done, he may be tempted to colour
his evidence in order to incriminate someone else or to obtain a lighter
sentence.”

Where the prosecution calls as a witness an accomplice against whom proceedings have
been brought but not concluded, it is the duty of the prosecution to let it be known that in
no event would the proceedings against the witness be continued. If this is not done the
conviction will normally be quashed on appeal.

Although an accused may no be a competent witness against a co-accused, he may, of

course, give evidence against a co-accused in the course of his own examination-in-chief,
or when cross-examined by the prosecution. If he does so he is liable to be cross-
examined with regard to any previous convictions and his bad character generally.

(v) Spouses

Although it was formerly the case that the spouse of an accused was not a competent
witness for the prosecution except in relation to certain offences, the effect of section 194
of the Code is that such person is rendered competent and compellable both for the
prosecution, and defence. The Code does not distinguish between monogamous and
polygamous marriages. The proviso to section 194 is that a husband or the wife shall not
be called as a witness for the defence except upon the application of the accused.

(vi) Difficult Witnesses

Any witness, other than the accused, who without sufficient excuse refuses to be sworn,
or to answer any question put to him or to produce any document or thing required of
him, may be treated as a refractory witness under section 202 of the Code. The
magistrate is empowered to adjourn the case and commit the witness to prison for up to
eight days at a time, unless he consents to do what is required of him. In addition, the
witness is liable to be prosecuted, or dealt with summarily, for contempt of court under
section 113 of the Penal Code. In R v Mpando 1971-72 ALR Mal. 326 Justice Chatsika
said that s. 202 of the code enables the court to commit for contempt only refractory
witnesses as defined in the Code, that is to say, witnesses who by their behaviour appear
to disobey what the court ask them to do, e.g., refuse to be sworn, refuse to answer any
questions, refuse or neglect to produce any documents in their possession, etc. The
section is not intended to apply to witnesses who merely retract previous statements to
the police by giving evidence tending to support the accused.

(vii) Contempt of Court

The term “contempt of court” includes a wide range of activities, inside and beyond the
courtroom, which are calculated to lower the court’s authority or likely to interfere with
the due administration of justice. Section 113 (1) of the Penal code is divided into nine
paragraphs, setting out the different types of criminal contempt which can occur.

Where a person commits contempt in the face of the court, the magistrate may deal with
him summarily under section 113 (2) of the Penal code. In such a case it is not necessary
for a formal charge to be drawn up and signed, or for a separate case file to be opened;
the record of the contempt is simply kept in the file of the case in which the contempt
arises. The offender must, however, be informed of the charge against him and should be
given an opportunity to show cause why he should not be convicted on the charge. The
sentence, which cannot exceed a fine of K140 or, in default of payment, six months
imprisonment without hard labour, must then be passed before the rising of the court on
the same day as the commission of the offence. In the leading case of Osman v Rep
1964-66 ALR mal. 595 Bolt J. considered that the power to impose summary
punishment for contempt should be exercised sparingly, with scrupulous care and only
in serious cases. Where a magistrate, purporting to act under section 113 (2), takes
evidence or departs in any way from summary procedure, he thereby loses his summary
jurisdiction and the accused must be formally charged with contempt and tried before
another court. The court further made other observations as follows:-

(a) the fact that an accused person is himself a legal practitioner is no reason
to deny him his constitutional right to be defended by counsel;

(b) Where a judge purporting to try a case of contempt summarily in terms of

section 113 (2) of the Penal code Cap 7:01 takes evidence or departs in
any other way from summary procedure given a normal trial before a
different judge.

(c) The fact that a judge dealing summarily with a case of contempt of court
in terms of section 113 (2) of the Penal code is both judge and interested
parry will not invalidate the proceedings; but where the accused is given a
full trial this should be held before a different judge.
 (d) Where a person accused of contempt is dealt with summarily in terms of
section 113 (2) of the Penal Code, it is not necessary for a formal charge
to be drawn up and signed, but the accused should be clearly informed of
the charge against him and should be given an opportunity to show cause
why he should not be convicted on that charge.

(e) The power to impose summary punishment for contempt in the face of
the court should be exercised sparingly and with scrupulous care, and
only in serious cases which are beyond reasonable doubt.

(f) Not every act of disrespect or discourtesy to a court will amount to

contempt; but any act done or writing published calculated to lower the
court’s authority or any other likely to interfere with the administration of
justice will amount to criminal contempt.

(g) Lack of intention or knowledge is no defence to a charge of contempt of

court, since the essence of the offence is the showing of disrespect and
the test to be applied is an objective one; the state of mind of the accused
may be inferred from his words or conduct at the material time.

Not every act of disrespect or discourtesy to a court will amount to contempt. In Rep v
Charley, Conf. Case No. 689, 1981 Mal. (unreported) for example, the trial court was
held to have erred in finding the accused in contempt of court for refusing to plead to a
charge of theft. The magistrate should have found that the accused was mute of malice
and, accordingly, should have entered a plea of not guilty, before proceeding with the
trial.
 Chapter 13

EXAMINATION-IN-CHIEF

Section 214 (4) of the Code provides that any witness who is giving evidence before the
court may be examined-in-chief by the party calling him, cross-examined by the
opposing party, and then, if the party calling him so desire, re-examined.

The purpose of examination-in-chief is to bring out from a witness such facts as are
within his or her personal knowledge which tend to prove the party’s case. This is done
by asking the witness questions in order o get responses to those question from the
witness. When asking questions to the witnesses, care should be taken to make them as
brief as practicable and to avoid, especially in the case of an uneducated witness, vague
questions. All questions put to a witness in examination-in-chief should be relevant to the
issue that is to say, they must be confined to those facts upon which a finding of guilty or
not guilty may properly be made. Section 214 (5) provides that the examination and
cross-examination must relate to relevant facts, but cross examination need not be
confined to the facts to which the witness testified on his examination-in-chief. In cross
examination the witness may, in addition, be asked questions which tend to:-

(a) test his truthfulness (veracity)

(b) discover who he is and what is his position in life;

(c) shake his credit, by injuring his character.

Leading Questions

A leading question is defined by section 217 of the code as “any question suggesting the
answer which the person putting it wishes or expects to receive,” and section 218 of the
Code restricts the asking of such question in examination-in-chief, except with the
permission of the court. Leading questions are objectionable because of the obvious
danger of collusion between the questioner and the witness, and because the whole
purpose of examination is to allow the witness to give evidence of relevant facts which he
himself has perceived. In addition, account must be taken of human idleness: it is less
trouble to answer “yes” or “no” to a question than to frame an answer in one’s own
words. By way of example, on a charge of unlawful wounding, contrary to section 241
(a) of the Penal Code, the question: “Did Vincent Mitambo stab you with a knife as you
were leaving the Welcome Inn?” is clearly improper. Instead, the relevant information
should be elicited from the complainant by asking such questions as: “Where were you?
What were you doing? What happened next?”

Permission may be granted to ask leading question if they are non-contentious. Thus,
where a matter is purely introductory or undisputed, or which has, in the opinion of the
court, already been sufficiently proved, a witness may be led by the questioner. In
addition, leading questions may be asked of a witness in examination-in-chief where the
court permits that witness to be treated as “hostile”.

Hostile Witnesses

Although the expression “hostile witness” is not contained in the Code, section 230 does
allow the court, in its discretion, to permit a person calling a witness to put any question
to him which might be put in cross-examination by the opposing party. The witness may,
therefore, be asked leading questions, challenged with regard to his means of knowledge
of the facts to which he is deposing, or tested on such matters as the accuracy of his
memory and perception.

The meaning of the word “hostile” in Malawi is not absolutely clear. In English law, it
has been held that a witness is not hostile where his evidence is merely unfavourable to
the party calling him, but only where he appears to be biased or unwilling to tell the truth.
The most common instance of a witness being treated as hostile in Malawi arises when
such person gives evidence at the trial which is clearly inconsistent with a previous extra-
judicial statement made by him to the police. In such a case, the prosecutor will produce a
copy of that earlier statement for perusal by the court, before seeking leave to treat the
witness as hostile. Clearly, the decision lies with the court, but such discretion must, it is
submitted, be exercised judicially and merely because a witness have given evidence
which appears unfavourable to the party calling him should not, of itself, entitle that party
to treat the witness as hostile.

Where a party successfully applies o treat a witness as hostile, and cross-examines him in
connection with a previous inconsistent statement, the effect is not to establish the truth
or falsehood of the former assertions but to highlight the unreliability of the witness. It is
then a matter for the court to decide whether his evidence should be disregarded
altogether. In Karima v Republic 1966-68 Mal. 601 the Supreme Court of appeal did
not interfere with the finding of the trial judge who believed the evidence of a
prosecution witness although it was at variance with that given by him at the preliminary
inquiry, because the reason for the discrepancy was satisfactorily accounted for.

Refreshing memory

Before the trial each witness will usually have given a statement, called “proof of
evidence”, to the police or the accused’s legal representative, and it is on the basis of this
statement that questions put to the witness-in-chief will be framed. It is frequently the
case that a considerable time will have elapsed between the occurrence of the matter in
issue and the presence of the witness in court, and for this reason section 235 (1) of the
Code permits such person, with the permission of the court to refresh his memory by
referring to any writing made by himself at the time of the transaction concerning the
matter he is questioned or soon afterwards the court considers it likely that the transaction
was fresh in his or her memory. A witness may also refresh his memory in the following
circumstances:

- the witness may refer to such writing made by any other person at the time of
the transaction or soon afterwards, and which he read within that time and he
knew that it was correct.

- An expert may refresh his memory by reference to professional treatises.

- A witness, with the permission of the court, may refresh his memory by
reference to a copy, provided the court is satisfied that there is sufficient
reason for the non-production of the original.

A witness may also testify as to facts contained in any other document which falls within
the categories mentioned in section 235 of the Code although he has no specific
recollection of the facts themselves, but if he is sure that the facts were correctly
recorded.
Therefore, a witness may refresh his memory from a document prepared either by himself
or by another, provided, in the latter case, that he, the witness, verified the document at a
time when the facts were still fresh in his memory. For example, in Langton (1876) 2
QBC 296: a pay clerk was allowed to refresh his memory as to the sums paid by him to
workmen by reference to entries in a time-book. The entries, which were for days worked
and wages due had been made by another clerk and had been seen by he pay clerk at pay
time when the accused had read from the book to enable the pay clerk to pay wages in
accordance with it. Likewise entries in ships log book made by the workmate and verified
by the captain about a week later were allowed to be used to refresh the captain’s
memory. (Answer v Whalley (1852) 2 Car & Kir 54). A witness may also refresh his
memory from his disposition or from a statement to the police taken down by a police
officer and then read over by the maker (see Mullins (1848) 3 Cox CC 528; Gleed v
Stroud (1962) 26 JCL 161; and Lau Pak Ngam v R [1966] Crim LR 443, approved in
Richardson [1971] 2 QB 484. See also Sethon (1987) 85 Cr. App. R 19: an observation
log compiled by one officer and containing (a) entries based on his own observations and
(b) entries, based on what was reported to him by other officers engaged in the same
activity which were verified by those officers signing such entries at the first convenient
opportunity, may be used by the officers to refresh their memories if the usual evidential
basis for application is established. In another case it was heard that in the case of
interpreters at an interview which an accused was questioned through an interpreter, in
the absence of an independent note made by the interpreter of the questions put and
answers given, the interpreter should have initiated the interview record so that he may
use it to refresh his memory when giving evidence of those questions and answers.

Section 235 of the Code provides that for a document to be used for the purposes of
refreshing a witness’ memory, must be made or verified at the time of the transaction
concerning the matter he is questioned or soon afterwards when the transaction was likely
fresh in his memory. I was heard that a gap of a fourteen days or three weeks may be
acceptable but twenty seven days may lead a court to be hesitant before giving a witness
permission to refresh his memory and that six months is certainly too long. In the case of
Da Silva (1990) 1 WLR 31, Stuart-Smith LJ at page 32 said:

“Much will depend on the nature of the evidence to be given. Where, for
example, a witness purports to give a verbatim account of a conversation,
the note will need to have been made much nearer to the time than if he
merely purports to give the general effect of a conversation.”
In certain circumstances, a witness who has began to give evidence but who cannot recall
the detail of events, because of the lapse of time since they took place, may be permitted
by the court, in the exercise of his discretion and in the interest of justice to refresh his
memory in the witness-box (or out of court) from a statement made nearer to the time of
the events in question, even though it was not made at the time of the events or so shortly
thereafter that the facts were fresh in the memory (Da Silva). The rationale of this
decision is to assist a witness who could have refreshed his memory out of court but who
failed to do so, or lacked the opportunity to do so, before entering the witness-box.
However, the statement in such a case must be removed from the witness when he comes
to give his evidence. In summary Da Silva laid down the following circumstances where
a witness who had started giving evidence may be allowed to refresh his memory from a
statement had nearer to the events in question:

(a) That the witness indicated that he could not now recall the details of events
because of the lapse of time since they took place

(b) That he made a statement much nearer to the time of the events and contents
of the statement represented his recollection at the time he made it.

(c) That he had not read the statement before coming into the witness-box.

(d) That he wished to have an opportunity to read the statement before he

continued to give evidence.

In the Da Silva case the judge said it did not matter whether the witness withdrew from
the witness-box to read his statement or whether he read it in the witness-box. What was
important was that if the former course was adopted, no communication must be made
with the witness, other than to see that he could read the statement in peace. What was
important is that the statement had to be removed from the witness when he resumed
giving his evidence and should not be permitted to refer to it again. This differs from a
statement that is made by a witness at the time of transaction or soon afterwards since in
this latter case the witness may be allowed to retain and refer to the document whilst
giving evidence.

In section 235 (3) a witness is permitted to refresh his memory by reference to a copy of a
document. This principal may be justified on the basis that if the document was prepared
at a time when the facts were still fresh in the author’s memory, it may itself be regarded
as the original, or at least quasi-original. In Cheng (1976) 63 Cr. App. R 20, an officer
prepared his committal statement in March from his original notes, which had been made
after the accused’s arrest in February. By the time of the trial, some three years later, the
original notebook had been lost. The court of appeal held that although the committal
statement was a partial, and therefore not an exact, copy of the earlier notes from which it
had been prepared, it substantially reproduced the notes and could be used by the officer
to refresh his memory. Similarly, in Attorney-General’s Reference (1979) 69 Cr. App.
R 411, the Court of appeal held that a police officer could refresh his memory from a
notebook, compiled within two hours of an interview when the facts were still fresh in his
memory on the basis of earlier brief jottings made at the interview, notwithstanding at the
trial he could neither decipher the jotting nor recollect fully the questions put and answers
given. And again in Mills (1962) 1 WLR 1152 it was held that a police officer who had
heard, and made a tape recording of, a conversation between two accused was permitted
to refresh his memory by referring to notes written up with the assistance of the tape
recording which was not itself admitted in evidence.

If the original document has been lost or destroyed a witness may use a copy if it is
proved to be an accurate copy either by the witness himself or by some other person.
Thus in Topham v McGregor (1844) 1 Car & Kir 320, the author of an article written
some fourteen years earlier, who had not independent recollection of its independence,
was allowed to refresh his memory from a copy of the newspaper in which it appeared,
evidence having been given to the editor that the original manuscript had been lost and
that the newspaper was an accurate copy. In Chisnell (1992) Crim. LR 507, an officer
was allowed to refresh his memory from a statement, made nine months after an
interview and compiled on the basis of an already existing note, since the court was
satisfied that the note, which had been lost had been accurately transcribed into the
statement.

Under section 235 (6) a witness who has used a document in court to refresh his memory
must produce it for the inspection of the opposing party if he requires it as he may wish to
cross-examine on its contents. In the case of Senat v Senat (1965) 2 WLR 981, Sir
Hocely Simon P said:

“Where a document is used to refresh a witness’ memory cross-examining

counsel may inspect that document in order o check it, without making it
evidence. Moreover he may cross-examine upon it without making it
 evidence provided that his cross-examination does not go further than the
parts which are used for refreshing the memory of the witness.”

If the cross-examination goes beyond the parts used by the witness to refresh his
memory, the document is put in evidence so that the court can see the document upon
which the cross-examination is based. The document, however, is not evidence of the
facts stated in it, but evidence of the witness’ consistence or inconsistency going only to
his credit. Thus in Virgo (198) 67 Cr. App. R. 323, in which the defence cross-examined
H, a leading prosecution witness whose evidence required a corroboration warning, on
certain diaries used to refresh his memory and the diaries were put in evidence, an appeal
against convicted was allowed on the ground that although the trial judge had properly
directed the jury that the diaries could not corroborate H’s evidence, he had referred to
the diaries as ‘powerful evidence’ and failed to further direct the jury that they went only
to H’s consistency and credibility as a witness. However in any particular case in which
the judge takes the view that the interests of justice so require, he had a discretion to
refuse to allow the document to go before the jury if this could give rise to prejudice to
the accused.

It is common practice for applications to the court to be made under this provision on
behalf of police officers who wish to refer to details contained in their Police Notebooks.
The proper procedure in such a case is for the prosecutor to lay the foundation for the use
of the notes by eliciting from the witness evidence of the entry having been made at the
time of, or shortly after, the event. Permission of the court will then be sought for the
witness to use his writings to refresh his memory, under section 235 of the Code.
Permission having been granted, the witness may examine his notes and questions are
asked, not about the document itself, but about the transaction in question.

A distinction should be made between a witness refreshing his memory from his
statement before going into a witness-box and a witness refreshing his memory from a
document (whether it be a statement or otherwise) while giving evidence in the witness-
box. A line is drawn when a witness enters the witness-box. When giving evidence in the
witness-box in chief he cannot refresh his memory unless the document he wishes to
refresh his memory from falls within the conditions prescribed in section 235 of the
Code.

Production of documents

Much of the law relating to documentary evidence concerns civil cases as where, for
example, the parties are relying on the terms of a contract. In criminal cases, a document
is more likely to be tendered as a specimen or exhibit.

Before a document can be admitted as evidence it must generally be proved to have been
signed or otherwise executed by the person whose document it purports to be.
Genuineness is a matter of prime importance since the mere production of a document
which purports to have been written or signed by someone is no evidence of its
authorship. Proof of execution may involve evidence of handwriting or attestation.

If evidence of the contents of a document is adduced, the document itself should, as a

general rule, be produced to the court if it is in existence. For example, if the matter in
issue concerns the ownership of a vehicle, a witness should not say that it is owned by x
unless the registration book is also produced.

The Criminal Procedure and Evidence (Documentary Evidence Rules) explain what is
meant by “primary” and “secondary” evidence, and the circumstances in which
secondary evidence is permitted to prove the contents of a relevant document.

‘Primary evidence means the document itself produced for the inspection of the
court….secondary evidence means:
a) certified copies given under these rules
b) copies made from the original by mechanical processes which in themselves
insure the accuracy of the copy, and copies compared with such copies
c) Copies made from or compared with original
d) Counterparts of document as against the parties who did not execute them
e)oral account of the contents of document given by some person who has himself
seen it’67

Exhibits

Exhibits are items of evidence produced for the court’s inspection. Before an article is
received in evidence it must be shown to be relevant, and “normally the only way in
which an exhibit may be produced before the court is by a witness who can say what the
exhibit is and where it came from.”

The importance of marking exhibits was explained in Love v Republic Cr. App. No. 27,
1978 Mal. (unreported):

“…. when property is brought before the court as an exhibit the witness
must properly identify it…. Normally before the property is tendered in
evidence it should be given an identification number and when it comes to
the time when it can be put in as part of the evidence the record must
indicate that what was described as identification number “x” now
becomes exhibit number “Y”. When this is done, one is left in do doubt
that the item was properly identified by all witnesses whose evidence was
directed at identifying the item.”

To give an example: the accused is charged with theft of a radio. The complainant,
P.W.1, in examination-in-chief, describes the radio that was stolen from his house.
Having done so, he is shown a radio by the prosecutor, and if he identifies it as the one
taken from his house, it will be marked for identification (Id. 1). If a subsequent
67
CPEC (documentary Evidence) rules rule 3
prosecution witness referred to it and will quote the identification mark. The police
officer investigating the crime, P.W. 4, testifies to finding a radio in the accused’s
possession, and, having identified it as Id. 1, tenders it in evidence as an exhibit (exh. 1)

Then it is desired to tender an accused’s caution and charge statements in evidence, both
statements should be proved and admitted as exhibits.

Inspections, demonstrations and sketch plans

A magistrate may, during the hearing of a case and accompanied by the accused, the
prosecutor and any material witnesses, visit the scene of the alleged crime, or some place
connected with it. Although this involves a special expedition out of court, it is as much a
part of the general law relating to real evidence as the inspection of exhibits brought to
court. In Maulidi v Republic [1964-66] ALR Mal. 379 it was said that the purpose of
such visits is only to illustrate certain matters which may not be clear to the court. Briefly
the facts of the case were as follows: the appellant was charged in the lower court with
breaking into a building and committing a felony therein contrary to section 309 of the
Penal Code. At the trial a prosecution witness gave evidence that the appellant brought
home some cloth, the subject of the charge. The appellant said he had bought the material
from Indian traders and the court proceeded to visit the alleged shops of the traders in
order to take evidence of those Indian traders who could have been prosecution or
defence witnesses. The traders refused to give evidence for the defence and the appellant
was convicted. On appeal of the things that was considered was the correct procedure to
be followed when a court visits the locus in quo. The High Court went on to outline the
correct procedure as follows:

“A visit to the locus in quo starts with the court, the witnesses, the
prosecutor and defence counsel, if any, visiting the place. It is not intended
to take the place of evidence that should be given in court but only to
illustrate certain points which may be obscure and not clear to the court..
There was no necessity for the visit … to take the evidence of the Indian
traders whom the appellant alleges sold the cloth to him. The proper thing
to do is to call these people to court and take their evidence. Then, if the
court is in any doubt about any point, such as the distance of material
points which have been given in evidence, or the location of any place,
and so on, a visit should be made and, in my judgment, not otherwise. At
the scene the witnesses should indicate clearly what they had previously
told the court, and the court should make a complete record of what
happened there. When the court resumes normal sitting, these witnesses
should be sworn and should repeat what they said at the scene and be
subjected to cross-examination by the defence or the prosecution….

Alternatively, the witnesses may be sworn at the scene before they begin
their identification of the various places and points, which should be
recorded by the court and to give the defence or the prosecution an
opportunity of cross-examining the witnesses.”
Where the court goes to inspect an object out of court the proper procedure is for a
prosecution witness to point the relevant maters out to the magistrate who can then invite
the accused to cross-examine. The magistrate should not inspect the object himself and
act on his own observation since he may be mistaken and this procedure would deprive
the accused of the opportunity to cross-examine. As the magistrate who gives evidence to
himself cannot be cross-examined.

In addition, a witness may be permitted to give a demonstration, in court or at the locus in

quo, of what he perceived. Sketch plans are particularly useful in road traffic cases and
will often save a journey to the scene of the alleged offence. In cases where roads, places
and distances may be of importance, it is common for the investigating police officer to
prepare a sketch plan to record as accurately as possible what he observed at the scene.
The plan must be tendered in court by its author, and where an enlargement is made from
the original in his Report Book, the magistrate should satisfy himself that it is a genuine
copy of the original before admitting it in evidence as an exhibit.

CROSS-EXAMINATION (214(2))

When the examination-in-chief is finished, the witness is subject to cross-examination by

all parties to the proceedings, other than the party calling the witness. Thus, even an
accused is entitled to cross-examinee a co-accused who has chosen to give evidence and
any witness called by the co-accused. This applies not only where the co-accused has
given evidence unfavourable to the accused, but also if the accused has given evidence in
his own defence. If the party calling the witness feels that he will not examine the witness
after he is called and sworn, the witness may be cross-examined by those who are entitled
to examine him. In such a case the witness is called by the prosecution, sworn, asked no
questions in chief other than his name and address, and then cross-examined by the
defence and the other parties to the case. The purpose of cross-examination is to put to
the witness any facts inconsistent with what he has said-in-chief, which the cross-
examining party has sought or will seek to prove in evidence i.e. to elicit from the witness
evidence supporting the cross-examining party’s version of the facts in issue. In addition,
an attempt may be made to cast doubt on the accuracy of the witness’s evidence in-chief
by challenging his reliability as a witness (to weaken or cast doubt upon the accuracy of
the evidence given by the witness in-chief, and if necessary, to impact the witness’s
credibility).

In general, when cross-examination is being conducted by competent counsel, a judge or

magistrate should not intervene, unless if it is for purposes of getting clarity on matters he
has not understood. If he wishes to ask questions on matters that have not been touched
upon, it is generally better to wait until the end of the examination or cross-examination
as the case may be. But still a judge should do his utmost to restrain unnecessary cross-
examination. Although counsel must not be deterred from doing his duty, counsel for the
defence should exercise a proper discretion not to prolong the case unnecessarily. It is no
part of his duty to embark on lengthy cross-examination on matters which are not real in
issue.
If there are two or more accused jointly charge and separately represented by counsel, the
order of cross-examination is the order in which the names of the accused appear on the
charge sheet.

Effect of failure to cross-examine

A party who fails to cross-examine a witness upon a matter in respect of which it is

proposed to contradict him or impeach his credit by calling other witnesses, impliedly
accepts the truth of the witness’s evidence in chief on that matter, and will not thereafter
invite the court not to believe him in that regard. The proper course is to challenge the
witness while he is in the witness-box or, at any rate, to make it plain to him at that stage
that his evidence is not accepted. Thus in Bircham [1972] Crim. LR 430, counsel for the
accused was not permitted to suggest to the jury in his closing speech that the co-accused
and a prosecution witness had committed the offence charged, where the allegation had
not been put to either in cross-examination:

“…nothing would be more absolutely unjust than not to cross-examine

witnesses upon evidence which they have given, so as to give them notice,
and to give them an opportunity of explanation, and an opportunity very
often to defend their own character, and, not having given them such an
opportunity, to ask the jury afterwards to disbelieve what they have said,
although not one question has been directed either to their credit or to the
accuracy of the facts they have deposed to. (Browne v Dunn [1893] 6 R
67, per Lord Halsbury at pp. 76-77.”

There is no specific rule, that cross-examination of a witness is a necessary preliminary to

impeaching his credit. Thus, if the point upon which the witness is to be impeach is
manifest as when the story he tells is incredible, it is unnecessary to cross-examine upon
it, the most effective cross-examination would be to ask him to leave the box, provided
counsel cross-examining the witness is satisfied that the court will not treat that as
implied acceptance of the evidence of the witness.

Form of Questioning in Cross-examination

Questions in cross-examination are not restricted to matters raised in chief, but may relate
to any fact in issue (or relevant fact), or to the credibility of the witness. However, cross-
examination like the examination-in-chief, must relate to relevant facts, though questions
need not be confined to the facts actually raised by the witness-in-chief.

Counsel may ask leading questions, that is, he may ask questions which suggest what the
answer should be. Counsel need not ask for permission of the court before asking such
leading questions. Leading questions may relate to such matters as to the witness’s
powers for observation, the accuracy of his recollection and capacity to explain what he
remembers. Under section 228 of the Code, the witness must answer any question which
is relevant to a matter in issue even though his answer may incriminate him, expose him
to a penalty or forfeiture, or show that he owes a debt or he is otherwise subject to civil
suit. The proviso to the section, however, states that his answer will not subject him to
any arrest or prosecution or be proved against him in any subsequent criminal
proceedings, other than one for perjury.

Questions should not be put in such a manner as to be the nature of invitations to

argument rather than to a least answers to matters of fact, which is the true purpose of
cross-examination. Cross-examination is a powerful weapon entrusted to counsel, and
should be conducted with restraint and a measure of courtesy and consideration which a
witness is entitled to expect in a court of law. Thus, it is no part of the duty of counsel for
the defence to embark on a lengthy cross-examination on matter not real in issue. Again,
questions should not be in the nature of comment on the facts, comments should be
confined to speeches. Thus counsel should avoid questions such “I suggest to you that
…” and “Do you ask the jury to believe that …”, “If your evidence to be taken as
suggesting that…” Cross-examination should be confined to putting questions of fact.
Counsel must not in the course of cross-examination state matters of fact or opinion or
say what someone else has said or is expected to say. Counsel for the defence have
sometimes the tendency of putting questions/comments such as “the defendant’s
recollection is” or “the defendant will say” or “my instructions are that …” the time to
make such statements is an opening speech not in cross-examination. This rule should not
be evaded by framing the comments in a form of questions e.g., “What would say if the
defendant were to say....” Similarly, cross-examination must not be used for making
comments, which should be confined to speeches. For example, it is wrong for
prosecution counsel to say to the defendant in cross-examination: “You heard what the
sergeant said, is he lying?” The same restrictions apply to questions put by the judge to a
witness during cross-examination.

Cross-examination as to credit

The credibility of a witness depends upon: (1) his knowledge of the facts to which he
testifies; (2) his disinterestedness; (3) his integrity; (4) his truthfulness; and (5) his being
bound to speak the truth by such an oath as he deems obligatory, but such affirmation or
declaration as may by law by substituted for an oath. The degree of credit his testimony
deserves will be proportional to the court’s assessment of these qualities.

In addition to questions concerning a witness’s means of knowledge, opportunity of

observation, reasons for recollection, or belief, a witness may be asked questions about
his antecedents, associations or mode of life which although irrelevant to the issue would
be likely to discredit his testimony. However, such cross-examination should be within
acceptable limits. In order to impeach the credibility of a witness he may be cross-
examined about his previous convictions, his bias, any mental physical disability
affecting his liability, his reputation for untruthfulness, and previous statements made by
him relating to the subject matter of a charge and inconsistent with his present testimony.
If the witness denies any of these matters the cross-examining party is entitled to provide
them. Additionally, the cross-examining party may seek to show that the witness ought
not to be grieved on oath by asking questions as to his means of knowledge; his
opportunity of observation; his powers of perception; the quality of his memory;
mistakes, omissions and inconsistencies in his evidence; and his previous misconduct or
bad character. In the case of Funderburk [1990] 1 WLR 587/2 ALLER 482, it was
heard that if a witness’s testimony is inconsistent with a previous statement made by him,
that statement may be put to him in cross-examination to challenge his credibility if the
inconsistency relates to his likely standing with the court after cross-examination even
though evidence of the making of the statement would not be allowed because it was not
‘relative to the subject-matter of the charge.”

As to what extent police officers may be cross-examined about their behaviour in

previous cases, in order to show whether their evidence is reliable or not was considered
in the case of R v Edwards (1991) 1 WLR 207/2ALLER 266. The accused had been
convicted to robbery and possession of a firearm. The fact of the robbery were not in
dispute. The issue was whether the defendant was one of the three robbers. The evidence
against him came from one of the robbers who gave evidence as an accomplice that the
defendant was the third man and police officers gave evidence that he had on four
occasions stated that he was the third man. The defence case was that the whole interview
was a fabrication. It was heard that questions may be put to a witness as to any improper
conduct of which he may have been guilty, for purposes of testing his credit, and
therefore police officers can be cross-examined as to any relevant criminal offences or
disciplinary charges found proved against them.

General Rule: answers to questions going to credit are final

Generally, evidence is not admissible to contradict answers given on cross-examination

as to credit i.e. the answer cannot be impeached by the other party calling witnesses to
contradict a witness on collateral matters: see R v Cargill [1913] 2 KB 271. The
borderline of cross-examination to credit is often hard to trace. One test was formulated
by Pollock C. B. in Att-Gen v Hitchcock (1847) 1 Exch. 91 at 99 “if the answer of a
witness is a matter which you would be allowed on your own to prove in evidence – if it
had such a connection with the issues, that you would be allowed to give it in evidence –
then it is a matter on which you may contradict him.”

Exceptions

(I) Bias

Facts showing that the witness is biased in relation to the party calling him
may be elicited on cross-examination or if denied, independently proved: Att-
Gen v Hitchcock (1847) 1 Ex. 91; R v Yewin (1811) 2 Camp. 638; Dunn v
Aslett (1838) 2 M & R. 2122; R v Shaw (1888) 16 Cpx 503. And see R v
Denley [1970] Crim L. R. 583. In Thomas v David (1836) 7 C. & P. 350, a
witness denied that she was the mistress of the party calling her. It was held
that evidence in rebuttal was admissible. The fact that a witness has accepted a
bribe to testify may, if denied, be proved: Att-Gen v Hitchcock, ante. Where
a witness denies saying previously that he had had been offered a bribe, he
cannot be contradicted: ibid. Where a witness for the prosecution denied a
cross-examination that he had a quarrel with the defendant and had threatened
to be revenged on him, evidence was allowed to be given to contradict him: R
v Shaw (supra). In R v Phillips 26 Cr. App. R. 17, P was charged with incest
with his daughter B. B and I, a younger sister, were the principal prosecution
witnesses. P’s defence was that the charge was a fabrication and that the
children had been “schooled” by their mother into giving false evidence. Each
child denied in cross-examination that she had admitted to another person that
her evidence at an earlier trial in a magistrate’s court, when P was charged
with indecent assault on B and bound over, was false. Each child denied too,
that on the occasion of the trial for incest she was repeating what her mother
had told her to say. The trial judge refused to allow the defence to call two
persons to whom the children’s admissions in respect of the summary trial
were alleged to have been made, on the ground that the questions went to
credit only. It was held that the evidence was admissible. The questions were
not to credibility but to the foundation of P’s defence. The wording of the
judgment appears to imply that the contradictory evidence would be received
as evidence of the truth of the facts stated in it. It is submitted, however, that
for that purpose the evidence was plainly inadmissible as hearsay.

In R v Mendy 64 Cr. App. R 4, C. A., the court observed that the rule had
been of great practical use and had prevented the indefinite prolongation of
trials which would otherwise result if there was a minute examination of the
character and credit of witnesses. However, the rule was not all-embracing
(see Att-Gen v Hitchock, ante – the words used by Pollock C. B. at p. 101
applied almost precisely to the instant case). Accordingly, where someone in
the public gallery was observed taking notes, and later, speaking to a defence
witness about the case, the court held that evidence was admissible to rebut
the denial of the witness in cross-examination that such a communication had
taken place. The court observed that it would be strange if a jury and the court
were to be kept ignorant of such behaviour by a witness. The evidence in
question was intended to suggest that the witness was a participant in a
scheme designed to defeat the purpose of keeping prospective witnesses out of
court. The jury were entitled to know that the witness was prepared to cheat in
order to deceive them so as to aid the accused.

In R v Busby 75 Cr. App. R 79 C. A., B alleged that certain remarks

attributed to him by the police had been fabricated. The police officers
concerned were cross-examined to this effect. It was also put to the same
officers in cross-examination that one of them when visiting his premises, saw
a copy of a statement made by W to B’s solicitors which related to B’s
defence and then, in the presence of the other officer, threatened W to stop
him giving evidence. Each officer denied there had been any threat. Held, the
judge had erred in refusing to allow the defence to call W on the basis that the
cross-examination had gone only to credit. The point went to an issue in the
case (in the light of the suggestion that they had fabricated damaging
 remarks), namely, whether the police were prepared to go to improper lengths
in order to secure the accused’s conviction. See also R v Marsh 83 Cr. App.
R 165 C. A. and R v Edwards, ante 8 – 128.

(II) Previous Convictions

(a) Proof of Conviction

A witness may be questioned as to whether he had been convicted of any

felony or misdemeanour and upon being so questioned, if he either denies or
does not admit the fact or refuses to answer, it shall be lawful for the cross-
examining party to prove such conviction;

(b) Evidence of Reputation for Truthfulness

Whether a witness has or has not been convicted, witnesses will be called to
speak as to his general character, although not as to any particular offence of
which he may be guilty. In order to impeach the credit of the witness for
truthfulness, witnesses may be called by the other side to prove that his
general reputation is such that they would not believe him upon his oath. They
need not heard him on oath. In practice the question usually put on is “from
your knowledge of the witness would you believe him on his oath.” In R v
Richardson and Longman, 52 Cr. App. R., 317 at 323. The judge had this
to say:-

“1. A witness may be asked whether he has knowledge of the

impugned witness’s general reputation for veracity and whether
(from such knowledge he would believe the impugned witness’s
sworn testimony. 2. The witness called to impeach the credibility
of another witness may also express his individual opinion (based
upon his person knowledge) as to whether the latter is to be
believed upon his oath, and he is not confined to give him an
opinion based merely general reputation.”

The impeaching witness may not in examination-in-chief, give reasons for his
belief, but he may be asked for his reasons in cross-examination, and his
answers in cross-examination cannot be contradicted.

Where general evidence is given of the bad character of a witness, the

opposite party may cross-examine the witnesses as to the grounds of their
opinion if he thinks it prudent to do so; or he may call witnesses who can
speak for the general good conduct of the witness. It has been heard that
where a witness refuses to answer such a question, his not answering ought
not legally to have any effect with the court.

(c) Medical Evidence relating to reliability of witness’s evidence

 In Toohey v Commissioner of Metropolitan Police [1965] A. C. 595, it was
held that medical evidence is admissible to show that the witness suffers from
some disease, defect or abnormality of mind which affects the reliability of his
evidence. Such evidence may also be used to show the extent to which the
credibility of the witness is affected.

The list of exceptions to the rule that answers going to credit are final may not be closed.
Some which have been identified include: (i) matters going to an issue in the case; (ii)
previous inconsistent statements relating to an issue in the case; and (iii) matters tending
to show that the police are prepared to go improper length to secure a conviction . The
first two are, of course, not exceptions to the rule at all: the rule relates to matters going
to credit only.

A cross-examining party has considerable freedom in attacking a witness’s credibility. He

may ask leading questions and examine the witness on collateral matters which question
his knowledge, veracity, impartiality, character, and antecedents. However, where any
questions relates to a matter not relevant to the case except in so far as it affects the
witness’s credit by injuring his character, the court has a discretion, under section 215,
whether or not to compel the witness to answer. No question may properly be asked
under section 215 (1) unless the examiner has reasonable grounds for believing that the
imputation which it conveys is well founded, and the court may forbid indecent or
scandalous questions or those which appear intended to insult or annoy, or which seem
needlessly offensive.

If a witness has been asked and has answered a question which is relevant only in so far
as it tends to shake his credit by injuring his character, no evidence can be given to
contradict his answer. This rule is subject to the following two exceptions:

(a) if a witness is asked whether he has previously been convicted of any crime,
and he dies it, evidence may be given of his previous conviction;

(b) if the witness is asked a question tending to impeach his impartiality and
answers it by denying the facts suggested, he may be contradicted.

Cross-examination of the accused

Section 256 (1) of the Code directs the accused to answer any question and produce
anything lawfully put to or required of him by the court or in cross-examination. The
effect of any refusal or neglect on his part to be sworn give evidence, answer any
questions lawfully put to him by the court or in cross-examination, or produce any
document or thing which he is required to produce, such refusal may be commented upon
by the prosecution and may be taken into account by the court in reaching its decision.

Although an accused person cannot object to answering a question because of its

tendency to incriminate him as to the offence charge (s. 193 (2) (a)], he must not, as a
general rule, be asked, and, if asked, need not answer, any question tending to show that
he has committed, or been convicted of, or charged with, any offence other than the one
charged, or that he is of bad character [s. 193 (2) (b)]. The section deals specifically with
three kinds of questions namely: (1) those that would tend to criminate the accused as to
the offence charged; (2) those tending to show that he has committed or been convicted
of, or been charged with some other offence; and (3) those tending to show that he is of
bad character. The first class is permitted, the second and third classes are prohibited
unless they fall under any of the exceptions: see R v Isaac 1923-60 ALR Mal. 388;
Makonya v Rep 1966-68 ALR Mal. 428. the accused will, however, lose his protection
in the following circumstances:

(I) When proof that he has committed or been convicted of another offence is
admissible to show that he is guilty of the offence charged – s. 193 (2) (b)
(i) of the Code.

Thus, whenever evidence may be given in-chief of the details of other offences
committed by the accused e.g. as an item of similar fact evidence, he may be
cross-examined on them. In actual fact, such evidence will normally have already
been given by the prosecution in the course of is case, so that cross-examination
under this provision will be unnecessary. This is only allowed when it is sought
that the accused has committed or has been convicted of the other offence. You
cannot question the accused in regard to a charge in respect of which he has been
acquitted. The purpose is for the prosecution to prove the commission of, or the
conviction of, some other offence which would be “admissible evidence” to show
guilt in regard to the offence the accused is charged.

(II) When the accused, or his counsel, has sought to establish his own good
character, or to cast imputations on the character of any prosecution
witness, the prosecution may apply to the court for leave to cross-examine
the accused as to his character s. 193 (2) (b) (ii) of the Code.

If the accused tries to establish a good character, either by calling witnesses

himself, cross-examining the prosecution witnesses or by himself giving evidence
to that effect, the prosecution is at liberty in most case to prove his previous
convictions or bad character. He cannot claim immunity from questions which
tend to show the opposite, for his character is indivisible. Character includes
reputation and disposition. Thus in Republic v Winfield (1939) 4 All ER 164,
the accused, charged with indecent assault could not credit himself with a good
character for chastity without running the risk of cross-examination concerning a
previous conviction for larceny. The accused cannot asset his good character in
certain aspects without exposing himself to inquiry as to the rest of his record so
far as this tends to disprove his claim to good character e.g. the accused, who was
charged with larceny by finding, gave evidence that on two previous occasions he
had found property and given it back to its owners. It was held that he had thereby
put his character in issue – see R v Samuel 40 Cr. App. R 8. Similarly, where the
accused had alleged that he was married with a family and was in regular
employment, it was held that the accused was liable to cross-examination in
respect of any previous convictions – see R v Coulman 20 Cr. App. R. 106.
Broadly speaking, an “imputation” is made where the nature of the defence
involves the proposition that the court should not believe a prosecution witness on
the ground that he is an unreliable witness. The imputation itself may relate to
allegations of faults or vices which are not, in fact criminal offences.

In Selvey v DPP (1970) A. C. 304 at 353 Lord Pearce explained that the practical
justification for cross-examination of the accused under this exception:

“…….is the ‘tit for tat’ argument …. If the accused is seeking to

persuade the jury that the prosecutor behaved like a knave, then the
jury should know the character of the man who makes the
accusations, so that it may judge fairly between them instead of
being in the dark as to one of them.”

In the case, the House of Lords unanimously confirmed the existence of judicial
discretion to prohibit cross-examination under this exception, though strictly
permitted as a matter of law. In Phiri v R 1923-60 ALR Mal. 70 Spencer-
Wilkinson C.J. acknowledged this discretion and considered desirable that the
accused, particularly if unrepresented, be warned as soon as it becomes apparent
that he is asking questions of such a nature that he may expose himself to the risk
of cross-examination as to character. Such failure may, of course, be taken into
account by the Court of Appeal in deciding whether the conviction was “unsafe or
unsatisfactory” or whether there was a material irregularity in the course of the
trial. In a doubtful case, particularly where the accused is not legally represented,
if counsel for the prosecution desires to ask the accused is not legally represented,
if counsel for the prosecution desires to ask the accused questions relating to his
character he should, before putting them, apply to the court in order that the court
may have an opportunity or preventing them if it thinks it desirable to dos o: see
R v McLean (Charles) 19 Cr. App. R. 104. Even where such questions are
admissible in law, the court still has a discretion whether to allow them or not.
Although there is no general rule for the exercise of such discretion, it must
depend on the circumstances of each case and the overriding duty of the court to
secure a fair trial.

(iii) When he has given evidence against any other person charged with the
same offence s. 193 (2) (b) (iii).

The rationale behind this exception is said to be that the accused is in the same
position as a prosecution witness so far as the co-accused is concerned, and so
should not be prevented from discrediting the co-accused if attacked by him. In
order to bring section 193 (2) (b) (iii) into play, the accused persons must actually
be charged with the same offence; the mere fact that they appear on the same
charge sheet is not sufficient.

It is not necessary that the accused be motivated by any hostile intent in order to
give “evidence against” his co-accused. The test is an objective one, the important
factor being the likely effect of his testimony. “Evidence against” has been held to
 mean evidence which supports the prosecution’s case in a material respect, or
which undermines the defence of the co-accused. Guidelines for determining
whether accused has given evidence against co-accused were given in the case of
R v Varley (J. J.) 75 Cr. App. R. 24.

(I) The term “evidence against” means evidence which supports the
prosecution case in a material respect or which undermines the
defence of the co-accused.

(II) “Evidence against” a co-accused may be given either in chief or in

cross-examination.

(III) Whether evidence had been given “against” is to be judged

objectively – hostile intent is irrelevant.

(IV) Where the suggestion is that the co-accused’s defence has been
undermined, care must be taken to see whether the evidence is
clearly to that effect. Inconvenience to, or inconsistency with, the
accused’s defence are not in themselves sufficient.

(V) A mere denial of participation in a joint venture does not rank as

evidence against a co-accused. The denial must lead to the
conclusion that, if the witness did not participate, it must have been
the other accused who did it.

(VI) Where one accused asserts a view of the joint venture which is
directly contradicted by the other that contradiction might be
evidence against the co-accused.

The test to be applied in order to determine whether one accused has given
evidence against a co-accused is objective. It is the effect of the evidence
on the minds of the jury/court that matters, not the state of mind of the
witness who gave the evidence.

The losing of the protection afforded by section 193 (2) (b) (iii) with the
leave of this court.

RE-EXAMINATION

After cross-examination, the party who called the witness has the right to re-examine him
s. 214 (3), (4) of the Code. This even applies in the case of a hostile witness, who may be
re-examined on any new matter which arose out of cross-examination. The purpose of re-
examination is to put to the witness questions necessary to explain matters which have
emerged in the course of cross-examination. Re-examination must be confined to matters
arising in cross-examination and if, therefore, there is no cross-examination, there can be
no re-examination. Questions must not be asked on any new matter or fact which should
have been dealt with in-chief, without leave of the court. And if new matter is introduced
in re-examination, the adverse party may further cross-examine upon that matter s. 214
(6). This rule applies not only in the case of a witness whose name is notionally at the
charge sheet and who was called by the prosecution merely to allow the defence to cross-
examine him.

Leading questions may not be asked, except with the court’s permission. S. 218 of the
Code. Provided a proper foundation is laid, documents etc., may be used for the purposes
of refreshing memory in re-examination.

If a witness is cross-examined by two or more accused persons, re-examination will

follow the last cross-examination.

QUESTIONS BY THE COURT

Section 238 of the Code empowers a court to order the production of any document or
thing, or to ask any question it pleases, “in any form, at any time, of any witness, or of the
parties about any fact relevant or irrelevant”. In practice, questions should be confined as
far as possible to clearing up points which appear to need clarification. The magistrate
may question any witness at any stage in the course of the trial; and, even, though counsel
for the prosecution has closed his case, and counsel for the defence has taken objection to
the evidence, the magistrate may make further inquiries of the witness that he thinks fit,
in order to answer the objection.

However, the magistrate should exercise considerable restraint in his interventions. In R

v March, The Times, July 6, 1993 the Court of Appeal stated that it was most
undesirable that judges should interrupt a witness, particularly a defendant, when giving
evidence-in-chief or being cross-examined. The court cited with approval the following
passage from the judgment of the court in R v Hulusi and Purvis 58 cr. App. R. 278,
385:

“It is a fundamental principle of an English trial that, if an accused gives

evidence he must be allowed to do so without being badgered and
interrupted. Judges should remember that most people go into the witness
box, whether they be witnesses for the Crown or defence, in a state of
nervousness. They are anxious to do their best. They expect to receive a
courteous hearing, and when they find, almost as soon as they get into
witness box and are starting to tell their story, that the judge of all people
is intervening in a hostile way, then, human nature being what it is, they
liable to become confused and not to do so well as they would have done
had they not been badgered and interrupted.”

The court went on to say that the whole purpose of the adversarial process was that the
judge sat and held the ring. It was for counsel on each side to conduct examination and
cross-examination and for the judge to see that they did it fairly. It was most undesirable
for the judge to anticipate cross-examination or to interrupt the flow of evidence-in-chief
of a witness.

Where the judge does find it necessary to intervene in the course of the examination of a
witness with questions which may suggest that the evidence of the witness is not to be
believed, he should remind the jury that the question of believing or not believing any
particular witness is, like all other matters of fact, a question for them: R v Gilson and
Cohen 29 Cr. App. R. 174. Excessive intervention by the judge is commonly advanced
as a ground of appeal.

The magistrate must be, and be seen to be impartial in the way he conducts his case, but
this should not prevent him asking questions on behalf of an unrepresented accused.
 Chapter 15

JUDGMENT

The court having heard both the prosecution and the accused and their witnesses and
evidence, must decide whether or not the charge has been proved against the accused
person to the required standard. A judgment may be defined as a reasoned elaboration,
publicly stated, that justifies the conclusion or decision reached. Its purpose is to set forth
an explanation for a decision that determines a case that was presented before a court.
Section 259 (1) of the Code directs the court to deliver a judgment in accordance with
section 139 and 140, either acquitting or convicting him. The court must come to its
decision solely on the basis of what has been led in evidence and having regard to the
elements of the offence the accused is charged with.

If the accused is acquitted, the court should release him if he is in custody and there is no
any other charge pending against him requiring him to stay in custody further: s. 259 (2).
If the court convicts the accused, the court should record the conviction and pass sentence
or make an order against him according to law either forthwith or on a day appointed by
the court: s. 259 (3). A signed copy of a judgment or a copy thereof certified by the court
or its clerk is sufficient proof of he conviction or acquittal of the accused.

(a) Burden and standard of proof

The burden of proving that a person charged with that offence lies upon the
prosecution. This burden is called the legal burden and subject to a few exceptions,
never leaves the prosecution throughout a case. The standard of proof required of the
prosecution to discharge the legal burden is “beyond reasonable doubt”. The court
must, therefore, acquit an accused if satisfied that the evidence given by either the
prosecution or the defence creates a reasonable doubt as to his guilt in respect of the
offence charged: s. 188 (1), proviso of the Code. In Rep v Banda 1968-70 ALR Mal.
96 the High Court approved of the following statement made by Denning J. in Miller
v Ministry of Pensions [1974] 2 All ER 372 at 373:

“That degree is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable doubt does not mean
proof beyond the shadow of a doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the sentence ‘of
course it is possible, but not in the least probable’, the case is proved
beyond reasonable doubt, but nothing short of that will suffice.”

A reasonable doubt is simply that degree of doubt which would prevent a reasonable and
just man from coming to the conclusion that the case is proved, and the degree will vary
from according to the subject matter and all the circumstances of the matter (this list is
not exhaustive: see for example, presumptions contained in Customs and Excise Act,
Cap. 42:01), and Exchange Control Act Cap 45:01.
The legal burden will, however, be placed upon an accused person in each of the
following circumstances:

(I) Where the accused sets up insanity as a defence, the burden is upon him to
prove, on a balance of probabilities, that he was insane at the time of
committing the offence;

(II) On a charge under section 81 (1) of the Penal code, once it is proved by
the prosecution that the accused had an offensive weapon in his
possession, the accused bears the burden of proving lawful authority or
reasonable excuse for such possession;

(III) Where an accused is charged with the offence of theft by public servant,
the burden of proof initially lies on the prosecution to establish the
qualifying conditions for the operation of the presumption in section 283
(1) of the Penal Code. Once this has been done, the legal burden shifts to
the accused to satisfy the court, on a balance of probabilities, that he did
not steal the property in question;

(IV) Under section 313 (c) of the Penal code, which defines the offence of
unlawful possession of an instrument of housebreaking, the burden of
proof initially rests on the prosecution to establish that the accused was in
possession of the alleged housebreaking implement at night. The onus
then shifts to the accused to show, on the balance of probabilities, that he
had a lawful excuse for such possession.

(V) Under section 329 of the Penal code, the prosecution ust establish, beyond
reasonable doubt, that the accused had in his possession something
reasonably suspected of having been stolen or unlawfully obtained. Once
this has been shown, the burden shifts to the accused to satisfy the court of
the probability of his possession being lawful.

Evidential burden

The accused may raise one or more of the following defences: insanity, self-defence,
provocation (on a charge of murder), intoxication, automatism, duress, mistake or alibi.
With the exception of insanity, the accused bears no legal burden of proving such
defences or alibis; he need merely fulfil an evidential burden of adducing sufficiently
cogent evidence as to the existence of facts constituting the defence that the court is left
in doubt as to his guilt. The prosecution, on the other hand, has the evidential burden of
adducing evidence to leave no reasonable doubt in the court’s mind: s. 188 (1) of the
Code.

(b) Corroboration

What is or is not corroboration in any particular case will depend upon all the
circumstances, but it seems to be settled that, whether corroboration is required by
statute or as a matter of practice, it must take the form of:
 “…independent testimony which affects the accused by connecting or
tending to connect him with the crime. In other words, it must be evidence
which implicates him, that is, which confirms in some material particular
not only the evidence that the crime has been committed but also that the
defendant committed it.” – per Lord Reading C. J. in R v Baskerville
(1916) 2 KB 658.

Evidence of torn clothing may thus support the complainant’s story that she had been
raped, but it is not, per se, corroboration of her testimony as it does not point to the
accused as the culprit.

It is not essential that everything which the witness requiring corroboration has said be
confirmed by independent evidence; corroboration of some material particular which
tends to implicate the accused is sufficient, whether it be direct or merely circumstantial
evidence of his connection with the offence charged.

Nature of corroboration

It follows from the rule that corroborative evidence must come from a source which is
independent of the witness whose evidence requires corroboration, that a complaint made
by the victim of a sexual assault cannot corroborate his or her evidence. Evidence of
recent complaint in sexual cases is admissible only to establish the consistency of the
complainant’s story, and o negative consent where consent is in issue.

“The girl cannot corroborate herself, otherwise it is only necessary for her
to repeat her story twenty-give times in order to get twenty-five
corroborations of it.”

Nevertheless, it has been held that evidence of physical manifestation, such as the
distressed condition of a sex victim, or screams or protests uttered by her, may amount to
corroboration if contemporaneous with the offence and provided the court is satisfied that
her behaviour was genuine and not simulated.

The accused’s conduct and behaviour may, in fact, constitute corroboration of the
complainant’s testimony. For example, where he is shown to have made a false statement
to the police about his movements at the time of the alleged offence:

“Such a lie … would amount to corroboration if it is to lead to an

inference in support of the evidence of the complainant or if it gives to a
proved opportunity a different complexion from what that opportunity
would have borne if no lie had been told.” – per Cram J. in R v Kaluwa
1965-66 ALR Mal. 356 at 365.

An accused’s failure to testify in court will not constitute corroboration, but his evidence
itself may corroborate evidence of the complainant, as in R v Dossi (1918) 13 Cr. App.
R. 158, where the accused, was charged of having fondled the complainant.
Similar fact evidence may amount to corroboration where it shows a peculiar propensity
to do the act which forms the subject of the charge.

When corroboration is required

Unless a rule of law or practice provides otherwise, a court may convict an accused on
the testimony of one witness.

Corroboration is required by statute in the following cases:

(I) Unsworn evidence of children

Where a child witness is permitted to give unsworn evidence by virtue of

section 6 (1) of the Oaths, Affirmations and Declarations Act, the accused
cannot be convicted on that evidence unless it is corroborated by some
other material evidence implicating him.

If unsworn evidence is given by two or more children, they cannot

corroborate each other.

(II) Perjury

No one can be convicted of perjury or subornation of perjury solely upon

the evidence of one witness as to the falsity of any statement alleged to be
false.

(III) Sedition

Section 244 (1) of the code provides that no person shall be convicted of
sedition under section51 of the Penal code on the uncorroborated evidence
of one witness.

(IV) Procuration

Corroboration of evidence on charges under sections 140 and 141 of the

Penal Code is required.

(V) Speeding

On a charge of exceeding the speed limit, an accused cannot be convicted

solely upon the evidence of one witness’s opinion as to the speed at which
the accused was driving.

In the following cases, an accused person may be convicted on the

uncorroborated evidence of a witness, but the magistrate must warn
himself of the danger of so doing:

(a) Accomplices
 When the evidence against an accused is that of an accomplice, then
although “a conviction shall not be set aside merely because it
proceeds upon the corroborated testimony of an accomplice”, the
court should warn itself of the danger of relying on the accomplice’s
testimony unless it is corroborated in some material particular,
implicating the accused. The reasons for this rule are obvious: the
accomplice is usually an “interested” party, and he may be “tempted
to colour his evidence in order to incriminate someone else or to
obtain a lighter sentence himself.”

In Devoy v Rep 1971-72 ALR Mal. 223, the Supreme Court of

Appeal considered it most unsafe to convict an accused person on the
uncorroborated evidence of an accomplice. Nevertheless, if the court,
having made due allowance for the accomplice’s position at the time
of giving his evidence and the motives which he may have for giving
false information, is satisfied that his evidence, though
uncorroborated, is true, then it should convict.

(b) Sworn evidence of children

“Children are suggestible and sometimes given to living in a

world of make-believe. They are egocentric, and only slowly
learn the duty of speaking the truth…

Even if these dangers are not present, a child’s power of

observation and memory tends to be even less reliable than
that of an adult.” – Granville Williams, the Proof of Guilt 3 rd
ed., p. 178

Although corroboration is not required as a matter of law in respect of a

child witness, there is a rule of practice that, if such child is of “tender
years”, the magistrate should warn himself of the danger convicting on his
or her testimony in the absence of corroboration. If one child gives
evidence on oath, the unsworn evidence of another child may possibly
corroborate the sworn testimony, but a particularly careful warning should
be given in such a case.

(c) Sexual Offences

In sexual cases, corroboration of the complainant’s evidence, though

not in law essential, is in practice almost a necessity, and a trial court
should warn itself accordingly. Corroboration would be particularly
desirable where the defence is one of consent.

Nature of Corroboration Warning

The duty imposed upon a trial court regarding the question of corroboration was
well expressed by Bolt J. in Tanazari v R 1964-66 ALR Mal. 184 at p 192:
 “After the warning has been given, an examination of the evidence
must be carried out to determine whether or no there is material
amounting in law to corroboration of the appellant’s account. If
none is found, two courses are open to a trial court. It can acquit
the accused on the ground that it is dangerous to convict on
uncorroborated evidence of the complainant, or in a suitable case it
can accept the testimony notwithstanding the lack of corroboration.
One would think, with respect, that the latter course should be
adopted only in rare instances when the trial court must expressly
record (i) that there is no corroboration; (ii) that it is well aware of
the danger of convicting in such circumstances; and (iii) that
despite the defect it is nevertheless satisfied beyond reasonable
doubt that the complainant is telling the truth.”

Where the trial court fails in an appropriate case, to direct itself as to

corroboration, and there is, in fact, no corroboration, any conviction recorded will
normally be quashed on appeal, unless the high court, having examined the whole
of the evidence, is satisfied that there has been no failure of justice.

(c) Mode of delivering judgment

Section 139 (1) of the code directs that the judgment in every criminal trial, other
than a trial by jury, must be read out (pronounced or the substance of such
judgment explained) in open court, either immediately after the conclusion of the
hearing or at some subsequent time of which notice has been given to the parties
and any counsel. Although the section empowers the court, where neither party
objects, to simply read out the substance of the judgment, in practice the whole of
the judgment will be read out. Unless the court intends to acquit the accused or to
impose only a fine in a case where his personal attendance at the trial has been
dispensed with, the accused must be present for judgment.

Where the accused is convicted, the judgment should specify the offence of which
the accused is convicted of, the section of the Penal Code or other law under
which the accused is convicted, and the punishment to which he is sentenced [s.
140 (2)]. Similarly in the case of acquittal the judgment should state the offence
of which the accused is acquitted [s. 140 (3)]

No judgment of the court shall be invalid by reason of the fact that any of the
parties or his counsel is not present at the time of the delivery of the judgment.

(d) Form and Contents of Judgment

Section 140 (1) provides that every judgment shall, unless otherwise provided by
the Code, be in writing and contain:

(I) the point (s) for determination

(II) the decision thereon;

 (III) the reasons for the decision; and

(IV) be dated and signed by the judge or magistrate.

The above requirements do not apply to the judgment of a magistrate in any proceedings
for the trial of an offence whose maximum punishment does not exceed one month and a
fine of K20.00. However in such a case the reasons should be recorded and certified to
the High Court by the Magistrate concerned in the event of an appeal to the High Court
or if the record is requested by the High Court s. 140 (1) (i).

In the case of a plea of guilty, it will suffice for the court simply to record: “on his own
plea the accused is convicted as charged”. Where, however, a plea of not guilty is entered
and evidence is taken, the judgment should be written in strict conformity with the
provisions of section 140. there are no detailed rules regarding how a judgment should be
written, but the following outline represents an acceptable format:

1. The first paragraph should contain details of the offence (s) with which the
accused has been charged.

For example: “Jamu Foloko is charged with theft by servant contrary to

section 278 as read with section 286 (1) of the Penal Code.
It is alleged that the accused was employed by GD
Company as a clerk and he stole an electric fan valued at
K1,000 the property of his employer.”

2. The court will normally direct itself as to the burden and standard of proof in
the case before it. This will satisfy any court, sitting on appeal or review, that
the trial court considered and applied the correct test.

For example: “The burden of proof lies on the prosecution and it is not
for the accused to prove his innocence. The prosecution is
under a duty to prove every fact or circumstance stated in
the count which is material and necessary to constitute the
offence charged. I further direct myself that the standard of
proof on the prosecution is for it to satisfy me of the guilt
of the accused so that I feel sure of his guilt.”

3. There should then be a review of the evidence, in narrative form. The facts
relied on by the prosecution should be recorded impartially, followed by the
case for defence. Contested and uncontested matters should be noted.

4. Next, the court, having considered the evidence as a whole, and the number of
possible explanations of a particular incident, may make findings as to
credibility.

5. The point (s) for determination may then be stated. Obviously, this will
depend upon the ingredients of the offence charged and may include relevant
evidential matters, such as the presence of corroboration: s. 140 (1), proviso.
 6. The decision and reasons to support it. The final paragraph should make it
absolutely clear whether the accused is found guilty or not-guilty of the
offence charged. If he is convicted, the judgment must specify the offence
together with the section under which he is convicted, and the punishment
imposed. In the event of an acquittal, the judgment must state the offence with
which the accused has been acquitted. Where the charge contains more than
one count or accused, a finding must be made in respect of each offence
charged and each accused named. Further, on his application, a copy of the
judgment must be given to the accused: s. 141

Effect of non-compliance with section 140

In Saimon v Rep 1971-72 ALR Mal. 211 the High Court, having reviewed earlier
authorities, commented that although the word “shall” in section 140 created a
mandatory, as opposed to a directory, duty, the matter was covered by section 5 of the
Code. Accordingly, the question facing any court, when considering the validity of a
conviction on appeal or review, is whether the irregularity had in fact occasioned a
failure of justice. The importance of the trial court evaluating the evidence and
making specific findings of fact, together with reason, was explained in Katola v
Rep. Cr. App. No. 58, 1978 Mal. (unreported):

“…firstly, a convicted person knows exactly the facts and reasons upon
which he is convicted. He will go away with a feeling that justice has been
done. Secondly, the appellate court will be in a better position in deciding
the case on appeal, bearing in mind that, in general, findings of fact cannot
be overturned by an appellate court. Finally, in the process of evaluating
the evidence, a court can easily see the strength and weaknesses in an
argument.”

The High Court in that case concluded that, as it was unable from the record to resolve
the question as to who was telling the truth in the absence of direct findings of fact by he
trial magistrate, the appeal against conviction must be allowed.

It would appear that, in the case of an acquittal, the judgment need not be as exhaustive.
It has been held that section 140 does not necessarily demand that that the trial court
deals with every point which would have o be decided in the case of conviction – a
decision in favour of the accused on one ingredient of the offence charged may make it
unnecessary to reach a decision on the others – but where a judgment fails to make a
finding on the central issue, this will constitute an error of law which would result in the
decision being reversed on appeal DPP v Chipaye 1966-68 ALR mal. 43; R v Kaipa
1966-68 ALR Mal. 291

(e) Alternative Verdicts

The general rule is that, unless amendment of the charge has been made during
the trial in accordance with section 151 of the Code, an accused person may only
be convicted of the offence (s) with which he has been charged before the court.
 The obvious danger of convicting of an offence not charged is that the accused
may not have had a full hearing in relation to that offence and inadequate
opportunity to defend himself. For example, in Rep v Banda 1971-72 ALR Mal.
280, it was held that the trial court had erred in convicting the accused of theft by
servant on a charge of simple theft, even though all the elements of the aggravated
offence had been established by the evidence adduced.

Nevertheless, in certain circumstances, a court is empowered to convict an

accused person of a particular offence although he was not actually charged with
that offence. Sections 153 – 157 of the code provided for specific alternative,
verdicts on charge involving:

(I) he homicide of children;

(II) manslaughter from driving a motor vehicle;

(III) rape and related offences;

(IV) burglary and related offences;

(V) theft and obtaining property by false pretences.

In addition, under section 153 of the Code, an accused may be convicted of an attempt to
commit the offence charged although he has not been separately charged with the
attempt.

More generally, section 150 (2) of the Code provides that where a person is charged with
an offence and facts are proved which reduce it to a minor offence, he may be convicted
of that minor offence – see s. 150 (1) of the code which appears to produce the same
result. In general, the courts experience little difficulty in ascertaining whether one
offence is “minor” to another; they simply look at the punishments provided. However, in
Tarmahomed v R 1964-66 ALR Mal. 457 the High Court recognised that this test is not
decisive where the penalties are the same, and went on to hold that the offence of failing
o declare dutiable goods is a minor offence to smuggling, although the same penalty
attaches to both.

In Jones v R 1923-60 ALR Mal. 797, a case which has been consistently followed, the
federal Supreme Court, having examined the Indian Penal code, from which our section
150 of the Code was taken, and numerous East African decision, held that a conviction
for an offence not charged is permissible under the section only where he offence is both
minor and cognate to the offence charged, “in that all the elements of the minor offence
must necessarily and according to the definition of the offence be included within the
scope of the major offence”. In Mbalule v Rep 1966-68 ALR Mal. 272 it was held,
following the case of Jones, that the offence of negligence by public officer under section
284 of the Penal code is not a “minor” offence to that of theft by public servant, to bring
it within section 150 (2):
 “Section 284 has nothing to do with fraud or dishonesty. It is not only a
more serious offence than simple theft, by the penalty, but also an entirely
different genus of offence, not kindred to or cognate to theft at all.”

It was further said in the Mbalule case that since a person charged with theft by public
servant may not be convicted of negligence in preserving property, in appropriate cases
these offences should be charged in the alternative in order to avoid the need for a second
prosecution.

In Rep v Richard, Conf. Case No. 2921, 1976 Mal. (unreported) Jere J. commented upon
the absence of the word “cognate” from section 150 (2), and conceded that cases in
Malawi have been decided on the premises that “cognate” should be read into the section.
Nevertheless, he preferred to give the provision its natural and ordinary meaning: see also
R v Lenard 1923 – 60 ALR Mal. 542 and considered that:

“The test the court should apply when exercising its discretion is whether
the accused person cannot reasonably be said to have had a clear
opportunity of making a defence to the alternative charge. It will,
therefore, become entirely a question of fact in each case before the
court.”

Clearly, whether one adopts the above test or favours the inclusion of the word “cognate”
into section 150 (2), the result will, in the vast majority of cases, be the same, for an
accused cannot be said to have had a fair opportunity of defending himself to the
alternative offence unless it is of the same type to that charged. However, it may well
make a difference where the facts are as in Richard’s case itself: the offence of
intimidation under section 88 (c) of the Penal Code is clearly not cognate to arson and yet
the accused, on a charge or arson, was convicted of intimidation, following a finding that
only a threat to burn down the complainant’s house had been established.
 Chapter 16

APPEAL AND REVIEW BY THE HIGH COURT

1. APPEALS FROM SUBORDINATE COURTS

Section 18 of the Courts Act reads:

“The appellate criminal jurisdiction of the High Court shall consist of the hearing
of appeals from subordinate courts, according to the law for the time being in
force relating to criminal procedure and such other appellate criminal jurisdiction
as may have been or may be conferred upon the High Court by any other law.”

(a) Appeal against conviction and/or sentence

Section 346 (1) and (2) provides that any person aggrieved by a decision (final
judgment, order, or sentence) of a subordinate court may appeal to the High Court
upon a matter of fact or law.

In Headcoat Good v R 1923 – 60 ALR mal. 829 a “person aggrieved” was

described as:

“…a man who has suffered a legal grievance, a man against whom
a decision has been pronounced which has wrongfully deprived
him of something or wrongfully refused him something or
wrongfully affected his title to something.”

In the case of Kamanga v Rep 1966-68 ALR Mal. 400 the court held that a person
who applies to the court for the reduction of a sentence, not as an agent of the
convicted person but as an intervenor on his behalf, is not a “person aggrieved”
entitled to appeal under s. 356 (1) of the code. The application may, however be
considered under revisionary powers of the High Court.

The Chief public prosecutor may appeal to the High Court against any final
judgment or order, including a finding of acquittal, of any subordinate court if,
and only if, he is dissatisfied upon a point of law. This means that the Chief
Public Prosecutor does not rank as a “person aggrieved” for the purposes of
section 246 (1) of the Code, for it cannot be said that his rights as a prosecutor
have been infringed or adversely affected. It has been held that the Chief Public
Prosecutor is entitled to exercise his right of appeal only under s. 356 (3) of the
code when the accused has been acquitted. However, if the accused is convicted,
the Chief Public Prosecutor is not a person aggrieved for purposes of an appeal
against conviction under s. 356 (1) since no right or interest of his has been
infringed or adversely affected: see DPP v Mtegha 1971-72 ALR Mal 468.
 Under section 348 of the code, an appeal against conviction entered by the trial is
not permitted where such conviction was entered by the trial court following a
guilty plea, except as to the extent or legality of the sentence following such a
conviction. This may be done by showing that the appellant had not appreciated
the nature of the charge or intended to admit his guilt, or that upon the admitted
facts he could not in law have been convicted of the offence. In Khalani v
Reginam 1964-66 ALR Mal. 580, the court held that an appellate court may only
entertain an appeal against conviction in a case where the appellant pleaded guilty
if it appears (a) that the appellant did not appreciate the nature of the charge or did
not intend to admit that he was guilty of it, or (b) that upon the admitted facts he
could not in law have been convicted of the offence charged.

(b) Appeal by Chief Public Prosecutor

The Chief Public Prosecutor is empowered to appeal to the High Court against
any final judgment or order if he is dissatisfied upon a point of law: s. 356 (3).
Although his right of appeal is no longer restricted to findings of acquittal, the
Chief Public Prosecutor may not appeal on matters of fact or against any sentence
imposed by the trial court. The distinction between matters of fact and matters of
law is not always clear cut. For example, any argument as to the sufficiency of
evidence or the unreasonableness of any finding thereon are of undoubtedly
questions of fact, and no appeal is possible. However, the High Court may
intervene on behalf of the Chief Public Prosecutor if it considers that there was no
evidence to support those findings of fact, this being a questions of law.

Procedure on appeal

The appellant must give notice in writing to the High Court of his intention to
appeal within 10 days of the finding or sentence appealed against s. 349 (1). If he
is unrepresented he may inform the trial court, following judgment, of his wish to
appeal and that will be deemed to be a notice in writing to the High Court of his
intention to appeal: s. 249 (1) (b) of the Code. Where the appellant is in custody
such as prison and delivers his intention to appeal to a person in whose custody he
is for transmission to the High court of his intention to appeal he shall be deemed
to have given such notice to the High Court.

The appellant must then enter a petition, in accordance with section 350 of the
Code, within 30 days of the date of the decision appealed against. If he has asked
for and received a copy of the decision, then the appellant shall file a petition, in
accordance with s. 350 of the Code with the High Court within thirty days of the
date of receipt of such decision: s. 349 (2) and (3). The High Court does have a
discretion to permit an appellant to appeal out of time where “good cause” is
shown: s. 349 (4).

The petition must set out the grounds of appeal, and, if the appellant is
represented by counsel, must contain particulars of the matters of law or fact
alleged to be erroneous and be accompanied by two copied: s. 350 (1). If the
appellant is in prison, he may hand the petition to his custodian, who will then
forward it to the Registrar of the High Court: s. 350 (3)

Bail and Legal Aid pending appeal

The trial court or the High Court may, under section 355 (1) of the code, order
that the offender be released on bail pending appeal and that the sentences
imposed on him be stayed until the appeal has been heard. Whereas the courts
have always considered an application for bail pending trial favourable – the
accused being presumed innocent – bail pending appeal is granted with reserve.
An appellant will only exit, “because until the conviction is quashed by a superior
court he is deemed to be guilty and does not deserve the free exercise of his
freedom” per Chatsika J. in Pandirker v Rep 1971-72 ALR Mal at 208 the
judge emphasized the fact that there is an important difference in the practice of
granting bail pending trial and pending appeal. In the first case the accused is
presumed innocent and provided the court is satisfied that he will appear for trial,
it will not deprive him of his freedom unreasonably; in the second case, the
accused has already been convicted and bail will only be granted where
exceptional circumstances are shown. Clearly, each case will depend upon its own
facts and precise rules cannot be laid down. It has been held, for example, that an
“exceptional circumstance” may be shown where there is a strong probability of
the appeal being successful. In Goode v rep 1971-72 ALR Mal. 351 the applicant
had been convicted ofoffences against the Exchange Control Regulations and was
ordered to pay fines totalling K7,000 or serve two years’ imprisonment in default.
It was argued on the applicant’s behalf that if released on bail he would try to
obtain money from friends and relatives to pay the fines. Edwards J. stated that he
would have been prepared to grant bail had he been satisfied that the applicant
was likely to accumulate enough money to pay the fines or a substantial part
thereof. The judge considered, however, that there was no such likelihood and,
accordingly, the application was dismissed. The courts have further held that the
hardship caused to a young wife and children by imprisonment of their bread-
winner is not “an exceptional circumstance.”

It is suggested that a court should exercise its discretion to grant bail more freely
where the circumstances are such that the offender has been sentenced to a short
period of imprisonment and there is every possibility that the sentence, or a
substantial part of it, will have been served by the time the appeal is heard.

Where an appellant is granted bail pending the determination of his appeal, such
period will not be taken into account by the High Court in computing any term of
imprisonment he may be ordered to serve: s. 255 of the Code.

Section 9 of the Legal Aid Act Cap 4:01 permits any person who desires to appeal
against conviction or sentence to apply to the Chief Legal Aid Advocate for legal
representation. If satisfied that the appellant has reasonable grounds for instituting
or defending the appeal and that it is in the interests of justice that the applicant,
who has insufficient means, should receive legal aid, the Chief Legal Aid
Advocate may undertake to legally represent him. If the applicant has some
means, he may be required to make a reasonable contribution towards the costs of
the appeal: Legal Aid Act, s. 10 and Legal Aid Regulations, reg. 5 and Second
Schedule.

Appeal will lie from any refusal of the Chief Legal Aid advocate to grant legal aid
to the Registrar of the High Court: Legal Aid Act, s. 11 (3), and Legal Aid
regulations, reg. 7 (1).

Hearing of Appeal

Unless the Chief Justice otherwise directs, an appeal from a subordinate court will
be heard by one High Court judge: s. 347 of the Code. The judge is authorised by
section 351 of the Code to dismiss an appeal summarily if, having examined the
petition and, possibly, the case record, he is of the opinion that it is vexatious or
frivolous or otherwise raises no sufficient ground upon which the appeal could
succeed. Assuming this is not the case, notice of the time and place of appeal will
be given to the appellant and Chief Public Prosecutor, and the latter will also be
furnished with a copy of the proceedings and grounds of appeal: s. 352 of the
Code. Where the Chief Public Prosecutor indicates to the High Court that he does
not support a conviction, the court may allow the appeal summarily in the absence
of the appellant: s. 353 (4). In all other cases, the appellant has the right to be
present at the hearing of his appeal.

The Supreme Court in Pryce v Rep 1971-72 ALR Mal. 65 outlined the approach
to be adopted by an appeal court when hearing an appeal on a matter of fact:

“[It] is for the court to review the record of the evidence, to weigh
conflicting evidence and to draw its own inferences: The court, in
the words of Coghlan v Cumberland ([1898] 1 Ch. At 704-705)
– ‘…must then make up its own mind, not disregarding the
judgment appealed from, but carefully weighing and considering
it; and not shrinking from overruling it if on full consideration the
court comes to the conclusion that the judgment is wrong.”

It is always important for the appellate court to bear in mind that

the magistrate has lived with the case in the course of the trial and
account should be taken of this factor. In making up its own mind
the court must remember that it has neither seen nor heard the
witnesses and that the view of the magistrate on credibility,
whether stated in express terms or seen from this judgment by
necessary inference, is entitled to great weight.” – and see Banda v
Rep Cr. App. No. 8, 1981 Mal. (unreported).

Under section 356 of the Code the High Court may authorise reception of
additional evidence to that produced at the trial – reasons must be given for
allowing the reception of additional evidence. The judge may either take such
evidence himself or adjourn the appeal while the evidence is taken by a
subordinate court: s. 356 (3). Unless the High Court otherwise directs, the
appellant or his counsel must be present when the additional evidence is taken:
CP&EC s. 356 (3)

Although section 356 does not lay down any principles governing the reception of
fresh evidence on appeal, it has been held that such evidence “has to be new, or be
discovered ex improviso, or not in possession of the defence at the time of trial”.
In Kumitete v Rep Cr. App. No 89 1975 Mal. (unreported) the appellant made
a preliminary application for the High Court to allow the admission of additional
evidence in support of his appeal. The High Court, basing its decision on section 3
of the Code and section 23 (2) of the Criminal Appeal Act in England, considered
that an appeal court should not receive additional evidence unless:

(a) the evidence is capable of belief and would have been admissible at the
trial;

(b) a reasonable explanation is given for the failure to adduce it at the trial;
and

(c) the appeal court is satisfied that, if produced, the evidence would actually
afford a ground for allowing the appeal.

The High Court will normally refrain from making up a deficiency in the
prosecution’s case by calling fresh evidence, whether to support to conviction or
sentence Kampila v Rep 1966-68 ALR Mal. 405.

Powers of High Court on Appeal

An appeal court will be slow to meddle with any findings of fact made by the trail
court and, in accordance with section 5 (1) of the code, will not reverse or alter a
finding, sentence or other order on account of any error, omission or irregularity
in the trial proceedings unless it has, in fact, occasioned a failure of justice: see
also ss. 3, s. 5 (2). In Useni v R 1964-66 ALR Mal. 250 Cram J. at p. 256
explained that it is the duty of the trial magistrate:

“…to evaluate the credibility of the witnesses; to distinguish between

admissible and inadmissible evidence; to rule whether accomplice or non-
accomplice; to apply the correct standard of proof; and to weigh and
believe or disbelieve evidence. Where a lawful discretion is judicially
exercised, an appellate court does not readily interfere with findings of
fact unless there is either no evidence or wholly insufficient evidence in
support of the finding or cogent evidence to the contrary which has been
misinterpreted or overlooked.”

Again in R v Robert 1961-63 ALR Mal. 291 at p. 292 Unsworth CJ. Restated
the principles upon which a court acts in exercising its jurisdiction to vary a
sentence:
 “This court does not alter a sentence on the mere ground that it might itself
have imposed a somewhat different sentence if it had been sitting at first
instance. The sentence must be manifestly excessive in view of all the
circumstances of the case, or be wrong in principle, before the court will
interfere.”

Having perused the case record and heard the appellant, or his counsel, and the
Chief Public Prosecutor, if they appear, and having borne in mind the above-
mentioned principles, the High Court may dismiss the appeal if satisfied that no
sufficient ground exists for interfering with the decision: s. 353 (2). If, however,
the judge considers that an appeal against conviction should succeed, he has
authority to:

(I) reverse the finding and sentence, and acquit or discharge the
appellant, or order a re-trial: s. 353 (2) (a) (I) of the Code; or

(II) alter the finding and find the appellant guilty of another offence,
and maintain, reduce or increase the sentence: s. 353 (2) (a) (ii) of
the Code; or

(III) alter the nature of the sentence: s. 353 (2) (a) (iii) of the Code.

If the appellant appeals against any other order imposed by the trial court, the
High Court may alter or reverse such order.

In Banda v Rep. Cr. App. No. 11, 1980 (unreported) the Supreme Court of
Appeal stated the principles which should govern the High Court in deciding
whether or not to order a re-trial. In the first place, the High Court should be
satisfied that there has been an error of law, or some irregularity or defect in
procedure, which has caused a failure of justice. It should also be satisfied that,
leaving aside the error, the evidence discloses a case against the appellant in
respect of the offence charged or some other offence. If the evidence is
insufficient to secure a conviction, and the effect of an order for a re-trial would
be to enable the prosecution to fill up the gap in the evidence, the power to order a
re-trial should not be exercised. Further, the court should avoid making an order
for a re-trial in respect of trivial offences, or unless there is some indication that
the State intends to recharge the appellant. Each appeal should be judged upon its
own facts and circumstances. In some cases the circumstances will be such that to
put the appellant on trial a second time would cause injustice e.g. Jana v Rep.
Cr. App. No. 130 1977 (unreported); in others, it would cause a greater
miscarriage of justice to the community not to have him re-tried.

In an appeal by the Chief Public Prosecutor against an acquittal, the High Court
ay remit the case for re-hearing, if the acquittal was arrived at without the defence
having been called, or may convert the acquittal a conviction and either make an
order or pass sentence itself, or remit the case to the subordinate court for
sentence: s. 353 (2) (c); Note that the State may only invite the High Court to
 convert an acquittal into a conviction where the DPP has brought the appeal: see
Kafamveka v Rep Cr. App No. 9 of 1981 (unreported).

Where the High Court wishes to impose a greater punishment to than that ordered
by the trial court, the appellant should first be asked to show cause why the
sentence should not be enhanced. In any event, the High Court cannot impose a
greater penalty than the trial court could have done in respect of the convicted
offence: s. 353 (3).

Having decided the appeal, the High Court may itself make an appropriate order
arising from its judgment, or may certify its judgment or the trial court to make
the order

2. REVIEW BY THE HIGH COURT

The High Court may, under section 360 of the Code, call for and examine the
record of any subordinate court proceedings for the purpose of satisfying itself as
to the correctness, legality or propriety of any finding, sentence or order recorded,
and as to the regularity of such proceedings. This power is particularly useful in a
case when the accused is unable to appeal and yet a point of law of importance is
involved.

Apart from this general power of review, section 15 (1) of the Code requires the
following sentences, imposed by a subordinate court, to be confirmed on review
by the High Court:

(a) a sentence of corporal punishment;

(b) a fine exceeding K100;

(c) a sentence of imprisonment exceeding two years if imposed by a Resident

Magistrate, or one year in the case of a magistrate of the first or second grade,
or six months if imposed by a third grade magistrate;

(d) any sentence of imprisonment, other than a suspended sentence, which is

imposed upon a first offender.

Where a magistrate imposes a sentence which is required to be submitted to the High

Court for review under section 15 (1), he should indicate this fact on the court record.

Although no party is entitled as of right to be heard, either personally or by counsel,

before the High Court when it is sitting as a court of review the judge may not make
an order to the prejudice of the accused without first giving him an opportunity to be
heard.

Following an application by an accused person who has been sentenced to a term of

imprisonment within (c) or (d) above, the trial magistrate may order his release on
bail pending the determination of the case by the High Court. However, any period
spent on bail will not count towards any sentence of imprisonment that he may be
ordered to serve.

Powers of the High Court on Review

Section 362 (1) of the Code grants the High court the same powers as those conferred
upon it when sitting as an appeal court.

Review and Appeal

The High Court is permitted, under section 362 (3) of the Code, to review any
proceedings, other than those in which corporal punishment is imposed,
notwithstanding that an appeal lies from those proceedings and that the time limited
for bringing such appeal has not elapsed.

Where the High Court has exercised its powers of review, whether in confirming a
sentence or otherwise, this will not operate as a bar to any appeal from the
subordinate court against conviction or sentence, unless the High court proceedings
took place in open court and the accused was given an opportunity to be heard either
personally or by counsel – ibid. s. 372 (4). See Bwetula v Rep Cr. App. No. 115 of
1981 Mal. (unreported).