SHAMWANA AND 7 OTHERS v THE PEOPLE (1985) Z.R. 41 (S.C.)
EDWARD JACK SHAMWANA 1st Appellant.
VALENTINE SHULA MUSAKANYA 2nd Appellant.
GOODWIN YORAM MUMBA 3rd Appellant.
ANDERSON KAMBWALI MPOROKSO 4th Appellant.
THOMAS MAPUNGA MULEWA5th Appellant.
DEOGRATIAS SYIMBA 6th Appellant.
ALBERT CHILAMBE CHIMBALILE 7th Appellant
LAURENT KANYIMBU 8th Appellant.
v THE PEOPLE Respondent
SILUNGWE, C.J., NGULUBE, D.C.J., MUWO, J.S., BWEUPE AND SAKALA, AG. JJ.S.
(S.C.Z. JUDGMENT NO 12 OF 1985)
AUGUST 8-10, 13-17 , 20-24, 27-31, 1984
SEPTEMBER 3-7, 17-21, 24 1984 AND APRIL 2, 1985
Criminal Law and Procedure - Autrefois acquit - Treason - Overt acts - Applicability to.
Criminal Law and Procedure - Charges - Amendment - Amendment by court on its own motion - Misdescription in overt act amended in ruling on no case without opportunity for accused person to argue - Whether injustice caused - Whether permissible.
Criminal Law and Procedure - charges - Amendment - Lateness of - Public interest - Consideration of.
Criminal Law and Procedure - Charges - Duplicity - Treason - Two or more conspiracy overt acts laid - Allegation in court was that the accused prepared to do something - Overt act was that the accused endeavoured to do something - Whether charge open to the objection of duplicity.
Criminal Law and Procedure - Charges - Uncertainty - Treason - Overt act of conspiracy - Particulars not set out - Whether charge uncertain.
Criminal Law and Procedure - Minor offence - Treason - Reduction to misprison in ruling on no case - Application of s.181C.P.C. - stage of trial when permissible.
Criminal Law and Procedure - Trial - Attorney-General as prosecutor - Whether entitled.
Criminal Law and Procedure - Trial - Credibility - Final Finding on credibility of witness made in ruling on no case to answer - Propriety of.
Criminal Law and Procedure - Trial - Trial within a trial - Cross-examination by accused of prosecution witnesses relating to confession statement of co-accused - Whether permissible.
Criminal Law and Procedure - Trial - Unfair trial - Adverse pre-trial publicity - Whether trial unfair.
Criminal Law and Procedure -Trial - Unfair trial - Basis by court -audience granted to prosecutor and one member of defence team in absence of other accused or their advocates - Prosecutor obtains adjournment - Whether trial unfair.
Criminal Law and Procedure - Trial - Unfair trial - Executive has indicated a desire to secure convictions - Whether trial unfair.
Criminal Law and Procedure - Trial - Unfair trial - Improper conduct by police before trial - Whether unfair trial.
Criminal Law and Procedure - Trial - Unfair trial - Prosecutor also potential witness -Propriety of.
Evidence - Accomplice - Bargaining with Prosecution by - Whether evidence admissible.
Evidence - Accomplice - Ethical or legal grounds for exclusion of - Basis for exclusion or admission.
Evidence - Accomplice - Corroboration - Mutual corroboration - When possible.
Evidence - Confessions - Breach of Judges rules - Effect of.
Evidence - Corroboration - Evidence of accused implicating co-accused - Whether corroboration required.
Evidence - Hearsay - Documentary evidence - Incriminating documents found on farm previously occupied by some of the accused and their confederates - Whether contents hearsay - Whether documents admissible.
Evidence - Interrogation notes - Notes of interview taken in aid of police investigations - Not read over to or signed by suspect - Whether admissible in evidence - What use permissible at trial.
Evidence - Judicial notice - record of another court - Competency of trial court to take judicial notice of.
Evidence - Overt act of conspiracy - Evidence of distinct acts not laid as overt acts - When admissible.
Evidence - Overt acts - Evidence tendered in support of overt acts not made out applied to other overt acts - Whether permissible.
Seven of the appellants were convicted of treason while one was convicted of misprision of treason. Originally, all of them were charged with one count of treason alleging that they prepared to overthrow the lawful Government. At the close of the prosecution case the trial court ruled that some of the overt acts had not been made out; the court amended the particulars of one of the remaining overt acts; it placed one of the accused on his defence on the lesser charge of misprision. On appeal, numerous grounds were argued alleging, inter alia, that the charge was bad for duplicity because two or more conspiracy overt acts were laid and because the evidence disclosed two different subplots for executing the coup plot; that the charge was bad for duplicity because while the court used the word "prepared", one overt act used the word "endeavoured". It was also argued that certain overt acts were bad for uncertainty; the conspiracy overt act was bad for uncertainty because detailed particulars of the acts of omissions of each accused were not given, the overt act alleging that one of the appellants was in command of "the said illegal army stationed at Chilanga", was bad for uncertainty because the illegal army was first mentioned in an overt act not alleged against the particular accused. Other complaints were directed against the amendments to the information effected at the close of the prosecution case. It was also argued that the trial was unfair; that the evidence of an accomplice who testified after bargaining with the prosecution should have been excluded; that certain documents were wrongly admitted and in any case their contents were hearsay evidence. Other misdirections were alleged concerning the admission of confessions and interrogation notes; and the talking of judicial notice of another court's case record. The learned trial judge made use of evidence tendered ostensibly in support of overt acts not made out; and he also relied in certain respects on the uncorroborated evidence of a co-accused. A key accomplice witness told certain lies but a, final finding was made in the ruling on no case submissions that he was credible. There was a number of accomplice witnesses and the question arose whether there was corroboration for their evidence and whether they could mutually corroborate each other.
Held: (i) Duplicity is a matter of form, not of evidence and, as such, it must be gathered from the count itself. Overt acts cannot render a count which is not double bad for duplicity. Although preparing is different act from endeavouring, the count could not be said to be double because it only alleged preparation to overthrow the Government. The allegation in the particulars of overt act that certain of the appellants endeavoured to persuade a witness to do certain things could not be transported into the count so as to make it allege a preparation as well as an endeavour to overthrow the Government and so make the count double;
(ii) An overt act of conspiracy to overthrow the Government need not set out detailed particulars of the acts or omissions of each accused person; such details and particulars are matters of evidence and their absence does not result uncertainty;
(iii) Under section 273 of the Criminal Procedure Code, the trial court had power to amend of its own motion the particulars of an overt act in line with the evidence given. Since the amendment did not alter the substance of the allegation and merely corrected misdescription, the trial court had properly exercised that power. The accused suffered no injustice where they were offered an adjournment and a chance to recall witnesses;
(iv) It is competent for trial court, in a ruling at the close of the case for the prosecution, to place an accused on his defence on a lesser charge - the application of section 181 of the Criminal Procedure Code may arise either before or at the no case to answer stage, or even at the judgment stage;
(v) The trial was neither unfair nor was the verdict rendered unsafe or unsatisfactory where the executive expressed a desire to secure convictions and there was adverse pre-trial publicity since none of these factors was shown to have influenced the trial judge;
(vi) On the facts of the case, there was no bias on the part of the court when the triad judge granted audience in chambers to state prosecutor and one member of defence team and when the only business transacted was the granting of an adjournment to the prosecutor. Because one of the advocates in the defence team was present, no prejudice was suffered by the accused represented by other advocates or those representing themselves when they did not attend the brief transaction;
(vii) Since an extra curial statement is evidence only against the maker, unless it has been adopted by the co-accused, it was unnecessary for the non-makers of the confession statement to be accorded the opportunity of cross-examining witnesses in a trial within a trial. As it was competent for the court to exclude the non-makers of the confession from participating in the trial within trial, their complaints that this was evidence of bias on the part of the court or that they were prejudiced could not be entertained; the trial was not thereby rendered unfair;
(viii) (a) Allegations of unfair and improper conduct on the part of the police during investigations had no bearing on the unfairness or otherwise of the trial itself, and did not render the trial unfair;
(b) The Attorney-General, who also happens to be the Minister of Legal Affairs, is allowed to prosecute; he is a Public Prosecutor by virtue of section 2 of the Criminal Procedure Code, and since he is also a legal practitioner, it was lawful for him to represent the Director of Public Prosecutions in that character;
(c) Since the Attorney-General was potential witness for the defence, and in every case where prosecutor or defence counsel is given notice that he would be called as a witness for either side to give evidence other than formal evidence, it is desirable for such prosecutor or defence counsel to withdraw, though failure to do so is not illegal; because the Attorney General did not infact play the dual role of prosecutor and witness, there was no irregularity and no cause for complaint;
(ix) (a) An accomplice who has been charged, either jointly or alone, should not be called as a witness by the prosecution unless he is omitted frown the indictment or his plea of guilty is taken, or before calling him the prosecution either offers no evidence against him and secures his acquittal or enters a nolle prosequi. An accomplice who testifies after bargaining with the prosecution is still a competent witness;
(b) Though the practice of calling accomplices as prosecution witnesses has received condemnation on ethical grounds, it is unnecessary for the court to add to the weight of such condemnation or to dissipate it. If there remains a very powerful inducement, the court may decide to exercise its discretion in favour of exclusion of the accomplice evidence;
(c) In exercising its discretion, the covert must take into account all the factors, including those affecting the public; it is in the interest of the public that criminals, especially in serious crimes, should be brought to justice;
(x) (a) Documents found on a farm previously occupied by some of the appellants were admissible, and their contents not hearsay because they were published maps which are admissible as public documents. In any case, the maps had markings on them made by a prosecution witness who was at the form;
(b) Documents containing the names of the persons at the farm were admissible though the author was not called; because witness familiar with the author's handwriting had recognised them and lead made tracings on one of the documents. The requirements of proving private documents were met,;
(c) The rule against hearsay applies equally to documents found at the farm. However, the documents were admissible, and not hearsay, because the documents, as things, were real evidence and also because documents which are, or have been in the possession of a party are admissible as original circumstantial evidence to show his knowledge of their contents, his connection with, or complicity in the transactions to which they relate, or his state of mind with reference thereto;
(xi) On a charge of treason no evidence is admissible of any distinct or independent overt act not laid in the indictment unless it amounts to a direct proof of the overt acts that are laid; the evidence of distinct overt acts of the appellants in
furtherance of the coup plot afforded direct proof of the overt act of conspiracy to overthrow the Government and was properly admitted;
(xii) Although statement made in breach of the Judges' Rules is admissible the breach raises rebuttable presumption of involuntariness and unfairness. Where a breach of the Judges' Rules has been admitted or established, it is for the prosecution to advance an explanation acceptable to the court for such breach: Chilufya v The People (1975) Z.R. 138 explained.
(xiii) Interrogation notes recorded by the police during an interview with a suspect who was not warned and cautioned, and who did not have the notes read over to him, or signed by him, and who was not even shown the notes which were recorded in aid of police investigations, cannot be the equivalent of confession and as such cannot be produced in court. Interrogation notes may at best be used only to refresh a witness's memory;
(xiv) In an appropriate case, particularly where facts may be judicially noticed after an inquiry has been made, a judge has power not only to look at his own records, but also those of another judge and to take judicial notice of their contents: Fatyela v The People (1966) Z.R. 135 overruled on this subject; Evidence tendered ostensibly in support of allegations of overt acts not made out is, if relevant, admissible in proof of the other overt acts which were made out;
(xvi) The evidence of an accused person who testifies on oath in his own defence which is against the co-accused should only be taken into account as against the co-accused if it is corroborated or supported by something more.
(xvii) Finality of assessment as to a witness's credibility, especially as to his truthfulness, should be reserved until the final judgment stage, after both sides have been heard; it was wrong to make final assessment in the ruling on no case to answer submissions;
(xviii) In some cases accomplices of a class may be mutually corroborative where they give independent evidence of separate incidents and where the circumstances are such as to exclude the danger of jointly fabricated story.