THE HIGH COURT OF MALAWI
CASE NO. 49 OF 2007
JUSTICE E.B. TWEA
Phillipo, State Advocate for the Respondent
Accused, present unrepresented
Mrs Mangison - Official Interpreter
U D G M E N T
an appeal against both the conviction and sentence.
appellant appeared before the First Grade Magistrate Court sitting in
Chikwawa on a charge of attempted rape. When called
upon to plead to
the charge, he admitted and alleged that he was very drunk. The
trial magistrate did not put the elements of
the offence to the
appellant, but proceeded to enter a plea of Guilty.
The facts of the case were that on the day in issue the
complainant was traveling from a maize mill. She had a basket in her
On the way she met the convict who demanded to have sexual
intercourse with her. She refused. The convict then grabbed her and
the basket fell down. He struggled with her. She shouted for help
and this dissuaded the convict. He ran away and hid in the
was later arrested and charged. The convict admitted the truth of
the facts after they were narrated to him in court.
appeal is on the ground that the plea was equivocal because he had
pleaded drunkenness. The point raised by the appellant
valid. Before a court enters a plea of guilty it must ensure that
the accused person admits all the ingredients of the
equivocation. When ever there is equivocation the court must enter a
plea of not guilty.
this as it may, after a plea of guilty has been entered, the
prosecution outlines the facts that constitute the offence. The
accused person is asked if he admit the facts outlined to be true.
This is the only way that the court can ascertain that the
was committed by the accused person in a particular manner. When the
accused person admits the facts, this would cure
defective plea: R v. Jailosi 1964-1966
ALR (m) 219. In the present case
therefore after the appellant admitted the facts, I would have found
that this cured the defective plea.
notwithstanding, I have examined the facts and I find that they do
not support the charge of attempted rape. The appellant
complainant and demanded to have sexual intercourse with her, which
she refused. He then grabbed her and struggled with
intention to forcibly violate her. He did not go beyond making his
indecent intent known to her and grabbing her. What
he had done did
not constitute the ingredients of the offence of attempted rape. In
my view, his actions constituted the offence
of indecent assault.
Indecent should be taken to bear its ordinary meaning: any
behaviour, talk, conduct that offends
against accepted standard of
decency or morality; or that which is obscene. It is not
acceptable behaviors to demand sexual
intercourse and then grab the
woman when she refuses.
find that had the court directed its mind to this, it would have
informed the prosecution that the facts do not disclose the offence
charged. It would have been open to the court to inform the
prosecution of the offence disclosed. The prosecution would have
duly amended the charge and the convict would have been called upon
to plead to the charge as amended: R.
Jacob S/O Luwemba (1923-60) ALR (m) 258 .
I do not think it is now open to this court to enter a conviction for
a lesser offence.
therefore quash the conviction and set aside the sentence. I would
have directed that the State should retry the accused, however,
view of the fact that he bas been in custody since he was convicted
on 12 June 2006, I refrain from doing so. I therefore,
the accused be released from custody forthwith unless he is held for
other lawful reasons.
in Open Court this 3rd
day of June, 2008 at Blantyre.