IN THE HIGH COURT OF MALAWI
Criminal Appeal number 61 of 2000
In the Second Grade Magistrate Court sitting at Nchima Criminal Case Number 40 of 2000
CORAM: D F MWAUNGULU (JUDGE)
Tembo, Legal Practitioner, for the appellant
Chimwaza, Deputy Chief State Advocate, for the State
Nthole, the official court interpreter
This is an appeal from the judgment of the Nchima Second Grade Magistrate Court. The Nchima
Second Grade Magistrate Court convicted the appellant with others of an offence relating to national examinations. Section 57 of
the Education Act, which I quote later in the judgment, creates several offences about national examinations. The Nchima Second Grade
Magistrate Court sentenced the appellant with others to fines. The appellant is the only one who appealed. This Court could not review
the sentence under conviction under section 15 of the Criminal Procedure and Evidence Code because of this appeal. In hearing his
appeal, therefore, I will consider the convictions of others who have not appealed.
The appellant, unrepresented in the court below and when lodging the appeal, raises five
grounds: the lower court misdirected itself in convicting based on confession of another defendant; the conviction is unsupported
by the evidence; the trial court misdirected itself in convicting the appellant when there was no evidence of cheating, the decision
was wrong in law and fact; and the sentence was manifestly excessive. The Deputy Chief State Advocate does not support the conviction.
In the lower court the prosecution sought to establish several theories: the teacher in
charge of the school and other staff at the school, shortly after the examination papers were opened, obtained the examination paper;
the teacher in charge and other staff prepared answers which they passed to students in the examination room; and that some students
sat examinations. The appellant denied receiving examinations from the teacher in charge. The prosecution charged the teacher in
charge with the rest of the defendants. The defendants comprised of the teachers involved in the exercise and the students who benefited
from the exercise. The appellant admitted sitting as an internal candidate at the examination centre. His explanation was that he
did not know the irregularity, the examination number having been given to him by the examination centre.
On the basis of these concessions of the appellant, the first ground of appeal that the
lower court erred in convicting on a confession by the teacher in charge, must relate to the evidence that the appellant received
written answers from the teacher in charge and other staff. The appellant, from the record of the lower court, denied receiving the
worked out answers from the teacher in charge or other staff. On oath the teacher in charge denied ever doing what he was accused
of. More importantly, he led no evidence to the effect that he supplied the appellant or the other students with the worked out answers.
The prosecution relied on a statement by an official from the Malawi National Examination Board that the Board had information that
this is what occurred.
The evidence on this point from an official of the Malawi National Examination Board was inadmissible to show that the teacher in
charge gave the appellant the worked out answers. Statements from persons other than those who through the medium of experience with
the senses can testify to those facts are generally inadmissible to prove facts in issue before a court of law. There is this Court’s
decision to the effect in Careta v Republic (1966-68) ALR (Mal) 285. Only those who saw or heard the teacher give the worked out
answers could testify to that effect. Of course what the teacher said on the matter could establish the fact. The teacher was accused
of the crime. A statement by the teacher or a student, accused of the crime, to that effect was admissible. It is a confession and
admissible. In Useni v R (1961-63) 2 ALR (Mal) 250 this Court approved this statement from R v Lambe (1791) 2 Leach 552.
““The general rule respecting this species of testimony is, that a free and voluntary confession made by a person accused
of an offence is receivable in evidence against him, whether such confession be made at the moment he is apprehended, or while those
who have him in custody are taking him to the magistrates … for the purpose of undergoing his examination …. First then,
to consider this question as it is governed by the rules and principles of the common law. Confessions of guilt made by a prisoner
to any person at any moment of time, and at any place … are, at common law admissible in evidence as the highest and most satisfactory
proof of guilt, because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were
A confession is however evidence only against the maker unless, of course, the other adopts it. The lower court obviously did
not direct itself to a common law rule, given statutory force by section 176 (2) of Criminal Procedure and Evidence Code:
“No confession made by any person shall be admissible as evidence against any other person except to such extent as that other
person may adopt it as his own.”
There are decisions of this Court to the same effect: Watson v R (1961-63) 2 ALR (Mal) 32; Twaibu v R (1961-63) 2 ALR (Mal)
532; Kumalele v Republic Cr. App. Cas. No 61 of 2000, unreported. There are also decisions of the Supreme Court of Appeal,
one of which is Gama v R (1964-66) 3 ALR (Mal) 528. The appellant did not adopt the statement of the teacher in charge. The appellant’s
criticism that the lower court could not employ the statement by the teacher in charge against the appellant is germane.
On the other hand, that the appellant and other students got worked out answers from the teacher in charge and other facts the appellant
and others accepted and the lower court found could not make any difference to the offence the appellant and others stood charged.
Section 57 of the Education Act, on which the appellant and others stood charged, reads:
“Any person having in his possession or under his control any national examination paper on any part thereof, or any information
relating to any national examination or any national examination paper, who communicates such paper or information to any person,
other that a person to who he is by duty bound or authorized to communicate it, or who uses such paper or information for the benefit
of any person or in any manner prejudicial to, or likely to be prejudicial to, the proper and fair conduct of any national examination
shall, in addition to any other penalty to which he may be liable under this Act, be guilty of an offence and liable to a fine of
100 and to imprisonment for one year.”
There are two aspects to this crime. First, the defendant must have in possession or under his control an examination paper or any
information relating to any national examination or any national examination paper. Secondly, the defendant must communicate such
paper or information to a person other than the one to whom he is supposed to communicate or use the paper or information for the
benefit of another or in a manner prejudicial to proper and fair conduct of a national examination.
The students, including the appellant, sitting in the examination room certainly had the examination paper in the examination room.
They certainly never used it or communicated the paper or information to anyone or the teacher in charge. The evidence suggests the
examination paper was probably opened in advance but we do not know by who. The teacher however was in possession of the paper and,
in my judgment, although we are unsure about the students actually involved, used the information to benefit some students or, which
is still a crime, employed the examination paper in a manner prejudicial to conduct of fair and proper examination. It was wrong
and a crime under section 57 of the Education Act to use the papers to work out answers for one, some or all of the students sitting
examinations at that time. The students, who only received the papers during the examination, could not, without more, be guilty
of the offence under section 57. The students would be guilty if it is shown there was an arrangement that would make them principals
to the crime. Concerning such an arrangement, there is no evidence or real doubt.
The appeals against sentence and conviction are allowed. I set aside the sentence against the appellant. I confirm the conviction
against the first defendant. The conviction and sentences against the other defendants are set aside. The judgment should be communicated
to all of them.
Made in open court this 12th Day of October 2001