IN THE HIGH COURT OF MALAWI
CRIMINAL APPEAL NUMBER 45 OF 2007
- AND -
CORAM: THE HONOURABLE JUSTICE E. B. TWEA
Miss Kayuni, State Advocate
for the State
Mr Msukwa, of the Counsel for the Appellant
Mrs Moyo Official Interpreter
J U D G E M E N T
This is an appeal against both conviction and sentence.
The convict was charged with two counts; housebreaking
contrary to Section 309(a) and theft contrary to Section 278 of the
Code respectively. After a full hearing he was convicted on
both counts and sentenced to 5 years and 3 years imprisonment with
hard labour respectively. He now appeals this decision.
It is clear from the evidence of PW1, the victim
witnesses, that the offences in issue were committed on different
told the lower court that on 9.01.07 she was at her
garden. When she returned home, she found that her house was broken
her battery was missing. Then again on the 11.01.07, she
came back from the garden and found that her house had been broken
and money valued K85,000 was missing. Upon causing enquiries
she received some information and went to the house of the parents
the convict and later to the house of the convict. It was her
evidence that she found her battery at the house of the convict.
was using it to operate his radio. She informed the court that the
convict admitted and apologised for taking the battery
but he denied
taking the money and challenged her to report the matter anywhere she
wanted. She reported the matter to police.
It is clear therefore, that the charge was bad for
duplicity. Further, the particular of offence do not indicate when
took place. This should have been indicated so that the
defence could know and prepare how to defend the case.
I have examined the evidence in total. I find that the
evidence of PW1 is clear on what happened on the 9th
and 11th January,
2007. The evidence of the convict is also clear that he viewed the
two incidents separately and defended himself accordingly.
I do not
find that he was misled by the duplicity nor that he had been
prejudiced thereby. I accordingly invoke Section 5 of
Procedure and Evidence Code: See Rep Vs
Nahuwo [1971 72] ALR (M) 433 page 434.
I must mention that the appeal did not consider the
issues of duplicity, but only challenged the conviction and sentence.
I have considered the evidence. I find no fault with
the finding of the magistrate.
The issue of breaking has not been disputed. It is not
even disputed that following the breaking of 9.01.07 the battery was
which battery was found at the house of the accused. It is
not also disputed that following the breaking on 11.01.07, money
K85,000 was stolen of which the accused admitted stealing
K35,000 only. That K15,000 cash and some new clothes which he
to have bought with the money stolen were recovered.
The convict challenged the conviction for theft of the
on ground that he was a house servant of PW1 and that he had been
to take the battery. Unfortunately the evidence does not
support this. PW1s evidence was that the convict was instructed
remove acid from the battery. He, however, not only took it away,
but was using it at his house. There is no explanation as to
he removed the acid as expected. It is also on record that he
apologised that he took away the battery and was using it.
Taking into account that the battery missed after a
breaking, that the convict, as a house servant was aware of this and
to his employer, PW1, and the fact that the battery was
found in his house being used by him, the only inference that this
can draw is that he is the one who broke into PW1s house and
stole the battery.
In the breaking and theft of money, there is no dispute
that the convict left PW1 at the garden and came to the house. PW2
said the convict entered the house of PW1 by the front door
and came out through another door. He then bade him farewell. There
was also no dispute that upon arrest the convict informed PW3, the
investigating officer, that he only stole K35,000 on which K15,000
cash was recovered and some new clothes that he bought with the
stolen money. The convict said the same things in his statements
He now challenges the conviction on the ground that the
trial court should not have relied on the caution statement after a
of not guilty.
It is correct that a plea of not guilty is a
general denial and once recorded it puts every element of the offence
However, it is equally legal to accept, in evidence, extra
judicial statements that are corroborated. In this case the
informed investigators what he stole and what he had from the
stolen cash which were recovered. No evidence has been adduced
to rebut this. Further, when cautioned the convict repeated the
confession. It is trite law that a confession can be accepted
evidence of what happened against the maker unless it is rebutted.
In the present case the confession was not rebutted. If
convict tried to justify himself by alleging that the money he stole
was proceeds of the maize that PW1 sold which was
cultivated by PW1
and himself. He never disputed that at all material times he was a
servant of PW1. It cannot be said, for one
moment, therefore, that
he was co owner of the money in issue. I therefore find that the
conviction was properly grounded.
For these reasons the appeal against conviction must
fail in its entirety.
Be this, as it may, I do not think I am at liberty to
add new charges after conviction: Rep
Vs Sandifoso [1971 72] ALR (Mal) 146.
For this reason, I will confirm the conviction in respect of the
breaking and theft of 11.01.07 only, which are more serious.
State wishes to charge him for the offences of 9.01.07 they should do
so within 15 days of this order otherwise they are
barred from doing
On the sentence, I find that it is within the guidelines
in respect of housebreaking. This was deliberate and planned. The
was a house servant and familiar with PW1s house. He left
her at the garden to commit the offence.
On the count of theft however, I think 3 years is
excessive. Even if it was planned. I bear in mind that some money
has been recovered
and that the convict has really not derived any
benefit from his act. I therefore reduce the sentence to 18 months
with hard labour. To this extent the appeal succeeds.
The sentences to run concurrently.
Pronounced in Open Court
this 17th day of
January, 2008 at Blantyre.
E. B. Twea