IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY
CRIMINAL DIVISION
CRIMINAL APPEAL CASE NO. 28 OF 2017
(Being Limbe PRM Criminal Case No. 236 of 2017)
BETWEEN:
FRANK JOHN APPELLANT
AND
THE REPUBLIC RESPONDENT
CORAM: THE HON. JUSTICE MR S.A. KALEMBERA
Mr Chitsime, Principal State Advocate, of Counsel for the Respondent

Mr Maele, of Counsel for the Appellant

Mrs Chanonga, Official Interpreter

JUDGMENT
KKalembera J
The Appellant, Frank John, appeared before the Senior Resident Magistrate Court
sitting at Limbe charged with the offence of defilement contrary to section 138 (1)
of the Penal Code in the First Count; and sodomy contrary to section 153 (c) in the
second Count. The particulars of the offence in the First Coun: alleged that Frank
John on the 6" day of August 2017 at Kachere Township in the City of Blantyre
nad unlawful carnal ki owledge of Yvonne Malinga aged 10 years a girl under the
age ofl6-years..The.particulars.of the offence.in.the.Second..Count-alleged.that
lrank John during the same time and place as stated in the First Count had

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unlawful carnal knowledge with Yvonne Malinga against the order of nature (at
the anus). The Appellant pleaded not guilty to both charges.The Appellant was
found with no case to.answer on the sodomy charge and acquitted..After.a.full trial
the Appellant was found guilty of defilement and sentenced to 12 years
imprisonment with hard labour. Being dissatisfied with both the conviction and
sentence, the Appellant has brought this appeal against both the conviction and
sentence.

The Appellant filed the following five grounds of appeal:

1. The lower court wrongly admitted the medical report which was tendered by
the police investigator.
The lower court erred in law in finding that there was a case to answer on a
to

charge of defilement when there was no evidence proving that there was
penetration.
The lower court erred in convicting the Appellant when there was no
corroborative evidence of the evidence of PW the complainant who gave
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unsworn evidence.
4. The trial was a nullity as it took place in chambers.
5. The sentence of 12 years is manifestly excessive.

The main issues for the court's determination are:

1. whether the Appellant's conviction is against the weight of the evidence and
therefore unsafe;
2. whether the sentence imposed on the Appellant was manifestly excessive.

This being an appeal from the subordinate court, I am mindful that it is trite that
such appeals be dealt with by way of rehearing, that is, I must look at and analyze
all the evidence in the court below. The Respondent paraded three witnesses to
prove their case, and the Appellant testified in his defence.

In the first ground of appeal the Appellant contends that the lower court wrongly
admitted the medical report which was tendered by the police investigator. Section
180 of the Criminal Procedure and Evidence Code provides as follows:

"(L) -Whenever any facts ascertained by any examination, including the

examination of any person or body, or by any process requiring any skill in

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pathology, bacteriology, biology, chemistry, physics, botany, astronomy or
geography or. nay body of knowledge or experience suficiently organized or
recognized as a reliable body of knowledge or experienceand.theopinions,thereon
of any person having that skill are or may become relevant to the issue in any
criminal proceedings, a document purporting to be a report of such facts and
opinions, by any person qualified to carry out such examination or process (in this
section referred to as an "expert") who has carried out any such examination or
process shall, subject to subsection (5), on its mere production by any party to
these proceedings, be admissible in evidence therein to prove those facts and
opinions if one of the conditions specified in subsection (3) is satisfied.

(2) The Minister of Health may by notice appoint any person for the time being
holding the office of Chief Clinical Officer, Senior Clinical Officer or Clinical
Officer to be a medical expert for the purposes of this section. A person so
appointed shall be deemed qualified to carry out medical examinations and post-
mortem examinations.

(3) The conditions referred to in subsection (1) are-

(a) that the other parties to the proceedings consent, or

(b) that the party proposing to tender the report has served on the other parties a
copy of the report and, by endorsement on the report or otherwise, notice of his
intention to tender it in evidence and none of the other parties has, within seven (7)
days from such service, served on the other party so proposing a notice objecting
to the report being tendered in evidence under this section.
'3
The provisions of section 175(5) shall apply to service under this subsection.

In the matter at hand there is indeed no evidence to show that the medical report -

Exhibit "1" was served on the Appellant before being tendered by PW 3, Set.
Kaitedzi, of Limbe Police. It was not served on the convict contrary to the strict
requirements of section 180(3) . In the case of Jafuli v R (1978-80) ALR Mal. 351
at page 244, the case of Rep v Kunkhongo, HC, Confirmation Case No. 1339 of
1977 (unreported) is cited with authority where the learned Judge had this to say:

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"T would point out that the requirements of s.180(3) of the Criminal Procedure and
Evidence Code were not. complied with. The report was therefore inadmissible. In
the event the report was not prejudicial to the accused,"

Again, Skinner J cited the case of Rep v Bhinifolo, HC, Confirmation Case No.
1114 of 1977 (unreported) in which the learned Judge had this to say:

"It was tendered by a police officer, not by the medical officer making the
examination of the complainant, the report should only have been admitted in
evidence if the requirements of s.180(3) of the Criminal Procedure and Evidence
Code had been observed. The report was in admissible."

Similarly, in the matter at hand it is clear that the requirements of s.180(3) of the
CP&EC were not met or observed. The medical report ought not to have been
admitted in evidence. It was not tendered by its maker or author, and it was never
served on the Appellant. It was and is in admissible, and it is hereby discarded and
disregarded. It is unfortunate that prosecutors keep on making these unnecessary
procedural errors, and in the process denying deserving victims any justice.

The medical report having been disregarded I must look at the remaining pieces of
evidence, thus also addressing ground of appeal number two. It has been contended
in this ground that the lower court erred in law in finding that there was a case to
answer on a charge of defilement when there was no evidence proving that there
was penetration. PW I, the victim, gave unsworn evidence after a voir dire
examination. It is her evidence that the Appellant penetrated her with his penis
the victim
through her anus. The Respondent cannot be heard to insinuate that
might have been mistaken as to where the Appellant penetrated her. That
is

actually a clear admission as to lack of clarity as to what actually happened,

if at
all. The evidence of PW II is just regurgitating what she heard from PW I, thus it is
not independent evidence which would corroborate the evidence of PW I. As
the Appellant denied
regards the evidence of PW III, which was formal in nature,
the charge.

Basically then, the evidence before the lower court was the evidence of PW
I.

Might a competent court convict on that evidence if the defence was

not called

upon to testify? In other words, as regards whether the

accused person had a case

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 of the prosecution case I adopt the approach by Chikopa J
to answer, at the close

(as he then was) in-the-case~of Rep v Harry Mkandawire and Another,

Criminal Case No. 5 of 2010 (unreported)(HC-MZ) when he said:

"The burden placed upon the State at this stage is not to prove its allegations

beyond reasonable doubt, which is the standard placed on the State at the close of
trial, but simply to establish grounds for presuming that our accused persons
committed the offences they are answering. In R v Dzaipa Revision Case Number 6

of 1977 [unreported] Skinner CJ adopted the definition of 'case to answer'

contained in the Practice Note issued by the Lord Chief Justice of England Lord
Parker at [1962] ALL ER 448 which runs as follows:

'A submission that there is no case to answer may properly be made and upheld:

a. when there has been no evidence to prove an essential element in

the alleged offence, or

b. when the evidence adduced by the prosecutor has been so

discredited as a result of cross-examination or is so manifestly

unreliable that no reasonable tribunal could safely convict upon it

The decision should depend not on so much whether the adjudicating tribunal (if
compelled to do so) would at that stage convict or acquit but on whether the

evidence is such that a reasonable tribunal might convict. If a reasonable

tribunal might convict on the evidence so far laid before it, there is a case to
333
ANSWer

I am inclined to agree with submissions by counsel for the Appellant that at the

close of the prosecution's case there was no evidence upon which a.reasonable.
tribunal might convict. There and then, the learned magistrate should have found

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that there was no evidence establishing an essential element. of the offence of
defilement; and that the evidence produced by the prosecution had been discredited

by cross-examination, hence the Appellant have been acquitted without

requiring him to enter his defence.

All in all, having found that there was no evidence warranting a case to answer;

and having observed that no reasonable tribunal might have convicted on that

evidence, this appeal need to succeed entirely and I do not need to discuss the other
grounds of appeal. On the observations herein, the appeal succeeds in its entirety.
Consequently I quash the Appellant's conviction and set aside the sentence
imposed herein. The Appellant be set at liberty unless be held for other lwful
reasons.

PRONOUNCED this 17" day of May 2019, at the Principal Registry, Criminal

Division, Blantyre.

Kalembera

JUDGE