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Mbewe v People (HPA/39/83)  ZMHC 5; (1983) Z.R. 59 (H.C.) (14 July 1983)
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HAPPY MBEWE v THE PEOPLE (1983) Z.R. 59 (H.C.)
Evidence - Witnesses - Witness present in court throughout proceedings - Admissibility of testimony.
Evidence - Witnesses - Witness present in court throughout proceedings - Weight of testimony.
Evidence - Witnesses - Witness present in court throughout proceedings - Effect of excluding testimony.
was charged with inflicting grievous bodily harm. At the close of
the prosecution case, he, was put on his defence.
He called one
witness who had been present in court throughout the trial. In the
interests of justice, the court disallowed
his testimony and
convicted the appellant, sentencing him to fifteen months
imprisonment with hard labour. He appealed against
For the respondent: N. Sivakumaran, State Advocate.
The appellant was convicted of grievous harm by the Subordinate Court of the Lundazi District. He was sentenced to 15 months imprisonment with hard labour. He has appealed to this court against both conviction and sentence.
circumstances leading to this case are that on 14th August, 1982,
the complainant, in a group of others as well as the
with his group were at a beer party. At the end of the beer
drinking session, the complainant left the scene with
As they proceeded going to their homes the appellant also on his
way home followed, his friends too. According
to the case for
the prosecution, when the appellant was caught up with the group
of the complainant, he began uttering insults
As a result
one of the complainant's friends rebuked the appellant, who later
got annoyed. Thereafter, a fight between the
complainant and one
of the colleagues of the appellant erupted. It appears from
evidence that in the end, this fight turned
into a free for all
resulting in the complainant sustaining the injuries complained
The case for
the prosecution was that, the fight was started by the appellant.
According to the evidence of the arresting
cross-examination, the appellant reported himself to the police
station carrying a knife which he said belonged
complainant. The prosecution witnesses at the scene, the friends
of the complainant, all denied in cross-examination
of seeing the
complainant with a knife.
At the close of the prosecution case, the appellant was put on his defence. After his rights were explained, he elected to give unsworn statement but told the court that he had one witness who had been in court throughout the trial. The appellant's intended witness admitted to having been in court throughout the trial. The court then made the following order:
In my opinion, this was a serious misdirection on the part of the learned trial magistrate. In practice, witnesses remain out of court until called to give their evidence, so that each witness may be examined out of the hearing of the other witnesses on the same side who are to be examined after him. In Moore v Registrar of Lambeth County, Court (1) at page 142
Edmund Davies, L.J. said:
agree with this statement but I would add further that where a
situation arises in which a witness to be examined
evidence of the other witnesses, his evidence is still admissible
but the court, in considering in evidence at
the end of the trial
will have to determine as to what weight to attach to that
Turning to the instant case, a perusal of the record reveals that the appellant's position was that he acted in self-defence. In his unsworn statement, he said:
It is quite
clear that the issue in the matter was one of credibility. The
learned trial magistrate believed the prosecution
story. Yet, it
is also the prosecution case that the appellant who reported
himself to the police brought with him a knife
said to belong to
the complainant. Peter Mumba, the appellant`s intended witness was
refused to give evidence by the court
on the ground that he had
heard the prosecution witnesses. This as I have said was a
serious misdirection which in my view
prejudiced the case for the
appellant and fatal to the prosecution case. The issue having been
one of credibility, I cannot
say that had the appellant's witness
given evidence, the learned trial magistrate would still have come
to the same conclusion.
In these circumstances, I find it unsafe
to allow this conviction to stand. I thus quash the conviction
and set aside
the sentence. The appellant stands acquitted.