IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CRIMINAL APPEAL NO 195 OF 2004
BETWEEN :
HAJI WILLIAM
Versus
THE REPUBLIC
CORAM : HON. JUSTICE KAMANGA I.C. MRS
R. Santhe for the State
Appellant present unrepresented
Mrs Mhone; Court Reporter
Gonaulinji; Court Intertpreter.
J U D G M E N T
This matter comes in this court by way of appeal against the conviction and sentence that were meted out by the first grade magistrate court at Lilongwe. The appellant Haji William was jointly charged with a friend for the offences of Burglary and Theft. They both pleaded not guilty. After full trial, they were both found guilty and convicted of both offences. They were subsequently sentenced to 3 ½ years for the burglary and eighteen months for theft.
The appellant had lodged for grounds of appeal which can be compressed into two parts. The first deals with the conviction. He is dissatisfied with the conviction because there is no sufficient grounds to merit a conviction. The appellant is aggrieved because there were no pointers that connected him to the alleged offence in that the property stolen from the burgled house was not found in his custody; and the complainant failed to identify him as a culprit that ransacked his house. That the policemen charged him with the offence merely because he escorted them to the house of a person that the police suspected of having committed the crime.
The second part deals with the sentence. The appellant laments that sentence of three and half years imprisonment with hard labour is excessive in the circumstances as he suffers from blood shortage.
The evidence on record indicates that the appellant had infact admitted taking part in the crime at the complainants residence. In the appellants caution statement, the appellant narrated to the police investigators how he was approached by the second accused in the original court and how the two of them met one Mike who know the complainants residence. Upon they discussed the possibility of visiting the appellants house and proceeded to the scene where they stole various items. The caution statement explains the whole operation and how the stolen property ended up at Mikes house. In the appellants evidence, he testified that he never took part in the activity. He also told the court that he never said anything that is in the caution statement and that he was just forced to thumbprint the document.
In arriving at the conviction, the lower court took into consideration what was in the confession statement and the fact that it had been retracted. The lower court however noted that despite the retraction, there were pointers that indicated that appellant was the originator of the information that was in the caution statement. The pointers included that during investigations it was the accused who told the police investigators that the stolen items from the complainants house were in Mikes custody. And it was the accused who led them to Mikes house. And that at Mikes house, the police investigators did find some of the property that had been stolen from the complainants residence. This satisfied the lower court that the appellant was part and parcel of the operation that took place at the complainants house. The law on retracted, confession is settled, when a confession which corroborates it, or with which it is consistent, before it can be satisfied beyond reasonable doubt that the contents of the confession are materially true: Chiphaka v R (1971-72)6 MLR (Mal) 214. It is clear from the lower courts finding that the magistrate painstakingly demonstrated to the appellant that even if he were to make a finding based on information other than the confession statement, he would still find the appellant guilty of the two offences. The magistrate showed the appellant that he relied on the evidence of the complainant himself. The complainant had told the court that when he went to the police station, he confronted the appellant and asked the appellant how he knew his house. And the appellant told the complaint that Mike was the instigator of the operation and it was Mike who knew the complainants house. The complainant also told the court that the appellant had told him of the modus operandi. That they had used a jack to break the burglar bars of the window, and they had taken out the complainants items like the TV Screen, Microwave, TV and iron through a door. In the appellants confession statement he had stated that he was the one who opened the complainants window and had forced the burglar bars with a crowbar. That Mike entered the house, got the keys and opened the door with the keys. And Mike got the TV Screen from the house and passed it on to the appellant. Another person, Richard got another TV screen and Mike got a microwave. They walked for a while and Mike went to hire a taxi that they used to ferry the items to Mikes house. In his defence, during examination in chief, the appellant had told the court that he knew Mike through his business. That Mike was his customer and he knew Mikes house because he had gone there at time to collect his money for the hoes that Mike had bought from him. At the same time in the same defence, the appellant said that he did not know Mike. Then he changed to say that he had only known Mike for a week. The inconsistencies in the appellants testimony leads one to the conclusion that when he says that he does not know about the incident, he is not tell the truth. I therefore find that much as the property was not found in his house, the appellant took part in the burglary and theft and the lower court properly convicted him and I confirm the conviction.
As to the severity of sentence. The maximum sentence for the offence of burglary is death or life imprisonment and the maximum sentence for the offence of theft is five years imprisonment. In mitigation the appellant indicated to court that he suffers from anemia. The court considered his factor and noted that the appellant had not produced any medical report to that effect. The court however considered the fact that the appellant was a first offender and fairly young and that had said that he is sickly. Consequently, the court sentenced the accused to three and a half years imprisonment with hard labour for the first offence and 18 months for the second offence. Taking the same factors that the lower court considered, I do not find the sentences manifestly excessive. I therefore confirm the sentences. The appellant shall serve three and half years imprisonment with hard labour for the offence of burglary and 18 months for the offence of theft. In other words, the appeal against conviction and sentence is unsuccessful.
Made in Open Court this 8th day of August 2005.
I.C. Kamanga (Mrs)
J U D G E