Zaperewera v Republic (Criminal Appeal No. 50 of 2001 ) (50 of 2001) [2002] MWHC 2 (01 January 2002);

                              IN THE HIGH COURT OF MALAWI

                       CRIMINAL APPEAL NO. 50 OF 2001

                                         BENJAMIN ZAPEREWERA


                                                 THE REPUBLIC

Chimwaza (Miss), of Counsel for the State
Matemba, of Counsel for the Appellant
Vokhiwa (Miss), Official Interpreter


The appellant in this case appeared before the second Grade Magistrate Court in Limbe on a charge containing two counts: burglary and theft contrary to section 309(a) and 278 of the Penal Code respectively.  He denied the charge.  After a full trial the court found him guilty on both counts and convicted him.  He now appeals against the conviction.

The appellant file three grounds of appeal: that the trial Magistrate wrongly applied the doctrine of recent possession and that the evidence generally was not sufficient to support the conviction.  The State opposed the appeal.

The facts of the case which are not disputed are that on 2nd August, 2001 there was a breaking at the plaintiff’s house and a curtain was stolen.  On 8th August, 2001, a thief pushed a mat and stole a jar of petroleum jelly.   Lastly during the night of 10th August, 2001 the plaintiff heard a lot of noise and she knew that thieves were stealing from her house.  She kept quite because she was scared.  The next morning she noted that her toilet fittings and manhole cover had been stolen.  She said she went round and found the manhole at the house of appellant she also found the water cistern which was stolen.  She reported to the Security Superintendent of her company and later to Police.  The accused was eventually arrested and recorded a statement under caution.

I must mention at the outset that in his statement under caution the appellant admitted stealing the curtain and selling it for K70.00.  He also disclosed that he stole a speaker from the complainant, which speaker did not  form part of this charge.  However, he denied any knowledge of the theft of the manhole cover or toilet.  The trial Magistrate noted his denial in his judgment at page 18, but found as a fast that it is the appellant who stole the toilet, cistern and manhole cover.

Coming back to the appellants grounds of appeal I wish to note that the charge preferred against the appellant suffered from duplicity.  The events of 2nd and 8th August were all included in the burglary and theft on the night of 10th August.  It is the duty of the Magistrate to ensure the correctness of the charge-sheet: See
Knobwe vs Rep. 1966-68 ALR Mal. 109.

In the present case the trial Magistrate commented on the defect of the charge on account of duplicity on page 26.  He found that they should separate counts for each incident: 2nd, 8th and 10th August.  However, this should have been clear to the trial Magistrate at the close of the prosecution case.  It is at this point in time that he would have requested the prosecution to amend the charge in accordance with what the evidence disclosed: See
Paundi vs Rep. 1966-68 ALR (Mal) 245 at 247.  The trial Magistrate was no alert to the defect in the charge and hence the confusion that arose.

It is clear that the trial court used the evidence admitted to in the statement under caution and found them to be materially true and this influenced the court in its findings on the burglary and theft 10th August, 2001.  Had the said evidence been excluded, the trial Magistrate would have  had to determine circumstances in the case as to recent possession.  From the evidence, it appears that the appellant is a dependant of the owner of this house.  How many people live at this house is not clear.  If it had not been for the evidence in respect of the events of 2nd and 8th August and the caution statement, the court would have had to determine why, the appellant would be send to be in possession of the items found at this house rather than the owner of the house.

I have considered the findings of the Magistrate as to the defence of the appellant which he described as very short.  In my view, the appellant could not have property defended himself in view of the duplicity in the charge.  He was materially prejudiced as the evidence touched on different matters which raised suspicion in the minds of the complainant and then the statement which put everything together.  Had the charge been properly served, he would have been required