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Mc William Lunguzi v Republic

Malawi case

Court: Supreme Court Of Appeal
Bench: The Honourable, The Chief Justice Banda, JA, The Honourable Justice Villiera, JA, The Honourable Justice Chatsika, JA
Cause Number: MSCA Criminal Appeal Number 1 of 1995
Date of Judgment: August 21, 1995
Bar:
Mr. Gustave Kaliwo, Counsel for the Appellant
Mr. Mwenelupembe, Counsel for the Respondent

Summary

The Director of Public Prosecutions appealed to the Malawi Supreme Court of Appeal against a High Court ruling that granted bail to the Respondent. The Respondent was charged with three counts, the most serious being accessory after the fact to murder, which is punishable by life imprisonment. The Respondent had initially been denied bail by the Chief Resident Magistrate's Court. The DPP's appeal was based on the grounds that the High Court judge had misdirected himself on the burden and standard of proof, arguing that the State only needed to prove its case on a balance of probabilities and that the Respondent, in a murder case, had the burden of showing special circumstances to justify bail.The Court held that the constitutional right to bail is not an absolute right and is subject to the discretion of the courts, which can refuse bail if the interests of justice so require. The Court affirmed that the High Court was correct in its view that the burden of proof rests on the prosecution to show why bail should not be granted. However, the Court also held that for serious offences such as murder, the discretion to grant bail is rarely exercised and only in the rarest of cases upon proof of exceptional circumstances. The Court reasoned that a person's popularity, prominence in the community, or a possible defence do not constitute exceptional circumstances. The Court's finding was that the High Court's decision to grant bail was in error. The appeal was allowed and the High Court ruling was reversed.

Statute and Subsidiary Legislation Construed

Constitution of the Republic of Malawi (s 42(2)(e))

Penal Code (s 108, 109, 225)

Supreme Court of Appeal Act (s 11(3))

Criminal Procedure and Evidence Code (s 118)

R-v-Tembo and Others Misc. Criminal Application No. 1 of 1995

Mwanza Commission of Inquiry Report

Ruling/Judgment

  1. This is an appeal brought by the DPP in terms of section 11 (3) of the Supreme Court of Appeal Act. It is an appeal against the ruling of the learned Judge in the High Court granting bail to the respondent. The respondent had first applied for bail at the Chief Resident Magistrate's Court sitting at Lilongwe were it was refused.
  2. It would appear that the respondent is charged in three counts and has already been committed to the High Court for trial. The first charge against  the  respondent  is  one  of  conspiracy  to  obstruct  the  course  of justice contrary to section 109 of the penal code. The first charge is a misdemeanour and therefore only punishable with a term of imprisonment of 2 years. The second charge against the respondent is one of destroying evidence contrary to section 108  of  the  penal  code.  It is punishable  with a term of imprisonment of five years. The third charge against the respondent  is one  of  being an accessory after the fact to murder  contrary to section 225 of the penal code. It is punishable with life imprisonment. The third charge is the most serious of the three charges.
  3.  Originally the learned DPP filed 11 grounds of appeal but on ยท17th May 1995 amended grounds of appeal were filed and these were later reduced to only 3.  It is on these latter grounds  that Mr. Mwenelupembe, who appeared for the DPP, has argued this appeal. Mr. Mwenelupembe combined grounds 1 and 3 when arguing the appeal. It was his submission that the learned Judge in the lower court misdirected himself on both the burden and standard of proof. Mr. Mwenelupembe contended  that the learned Judge imposed a higher standard of proof on the state in showing cause why bail should not be granted. He contended  that the correct standard of proof  which  devolves  upon  the state in showing  cause why bail should not be granted in any given case is proof on a balance of probabilities.   He referred  to the  passage in the  judgment  at  page 14  of the judgment where the learned Judge stated "............ I tend to think the burden is much heavier on the prosecution than the accused .........". Mr. 'Mwenelupembe referred us to Zimbabwean authorities  and  other authorities from our  own  jurisdiction  which  support  his contention  that the standard of proof cast upon the prosecution in showing cause why bail should not be granted is proof on a balance of probabilities. It was Mr. Mwenelupembe's further submission that once the state has discharged its burden the latter shifts to the applicant who  should  also  show,  on  a balance of probabilities, that bail would not  prejudice  the  interest  of justice.  He submitted that it is up to the applicant, especially in murder cases, to show special circumstances which would justify releasing him on bail.  Mr. Mwenelupembe  also contended  that the learned Judge should have taken judicial notice of the findings of the Mwanza Commission of Inquiry Report.
  4.  The essence  of  Mr.  Mwenelupembe's  submission  on  ground  three was that the learned judge did not properly consider or relate the issue of opulence  to  the  facts  of  the  case.  He  contended  that  had  the  learned judge correctly directed himself on the burden of  proof  and  if  he  had properly  considered  the  issue  of  opulence  of  the  respondent   the cumulative effect of the DPP's submission, in the lower court, would have weighed heavily against granting  bail to the respondent.
  5. Mr. Kaliwo, who appeared for the respondent, submitted that in considering this appeal the court must not lose sight of the findings of the lower court and the constitutional  and statutory  provisions which govern the  issue of bail. He submitted  that section 42 (2) (e) of the  Constitution has created a right of bail and  that it is incumbent on the prosecution to show that the accused  is not entitled  to bail.  Mr. Kaliwo also referred  us to section 118 of the Criminal Procedure and Evidence Code. It was Mr. Kaliwo's contention that the learned judge did not misdirect himself on the burden of proof and he cited the case of R-v-Tembo and OthersMisc. Criminal Application  No. 1 of  1995 (unreported)  where  Mwaungulu  J. gave a similar direction on the question of burden of proof. He reinforced his argument by referring to section 187 (1) of Criminal Procedure  and Evidence Code. It was therefore Mr. Kaliwo's contention that the learned judge correctly directed himself on the burden of proof. Mr. Kaliwo has argued that it is a misconception  to allege that the learned  judge in the lower court failed to take judicial notice of the Mwanza  Commission Report. He submitted that the Judge took  judicial  notice of  the  existence of the Report but quite properly refused to make findings based on its contents. Mr. Kaliwo further submitted that the learned Judge adequately dealt with the issue of opulence and he therefore  submitted  that  the grounds  of  appeal and  the  arguments  which  Mr.  Mwenelupembe  has advanced lacked merit and he prayed that the appeal should be dismissed in its entirety.
  6.  We have carefully considered all the arguments which both Counsel put forward with force and  ability.  We are satisfied  that  the  learned judge correctly directed himself on the burden of proof which the prosecution  must discharge to show cause why bail should  not be granted. It is true that the learned  judge did  not specifically  find  that the standard of proof which the prosecution must discharge is one on a balance of probabilities and although there are passages which would suggest that he was thinking of the higher standard of proof we are satisfied  that  on reading together all the judge's passages on the burden  of  proof we find that what he had in mind is proof on a balance or preponderance of probabilities. We are therefore satisfied that the learned Judge correctly directed himself  on the burden of proof.  We would  like to  make quite clear that  it is for  the  state to show cause why it would  be in the  interest of justice not to release the accused on bail.
  7. We are also satisfied that the Judge's approach to the Mwanza Commission Report was the correct one. He took judicial notice of the existence of the  Report which had become a notorious  fact and, in our view, correctly refused to base his findings on the contents of the Report. We are further satisfied  that the learned Judge carefully considered  the issue of opulence and how it can influence a court in exercising  its discretion in granting or refusing bail.  The Judge properly  directed his mind to the fundamental principles which a court must bear in mind in applications for bail and he also considered other relevant factors.  The result of our  findings is that there is no merit in any of the  grounds filed and argued on behalf  of  the  DPP.  This appeal  must therefore  fail and  it is dismissed.
  8. There has recently been a spate of bail applications and we consider it appropriate that we should give some guidance on the principles which courts should always bear in mind when applications for bail are brought before them.                                      
  9. First we would like to make clear beyond any doubt that the High Court has power to release on bail a person accused of any offence. In the applications which  are  now  coming  before the  courts  the provisions of the  Constitution  are  being cited as authority  for  the  bail applications. In particular it is section 42 (2) (e) of the  Constitution  which is being cited as the foundation  for the  right to bail.  There are two  points  which  must be made about the effect of section 42 (2) (e) of the  Constitution.  In our view the right to bail which section  42  (2) (e) now  enshrines  does not create an  absolute  right  to  bail.  The section  still  reserves the  discretion to the courts and it makes the position  absolutely  clear that courts can refuse bail if they are satisfied that the interest of justice so requires. The second point we would  like to  make is that section  42 (2) (e) does not create a new right. The right to  bail  has always been  known  to our  law and all that section 42 (2) (e) does is to give it constitutional force.  We would  like to emphasize that section 42 (2) (e) does not give an absolute right to bail. The courts will continue  to  exercise  their  discretion depending on circumstances obtaining in each particular case.
  10.  While  it is true that the High  Court can, in its discretion, grant  bail in any case, we feel the discretion should be exercised  with  extreme caution and care in the most serious offences. There are fundamental principles of universal application in common law jurisdictions which our courts  must not  lose sight of.  They are  principles which  must always be to the forefront of  any court considering  an application  for bail.  It  must be emphasized that bail must, of course, not be withheld merely as a punishment. The requirements as to bail are intended to secure the attendance of the prisoner at his or her trial.  Consequently  the  first question a court  must  raise is whether  the prisoner  would attend  his trial if he is released on bail. And in answering that question the court must consider first the nature or gravity of the  offence  and  secondly  what would be the punishment that would be visited upon the accused on conviction. We consider these principles as  the  fundamental  ones although there are other factors which a court will also consider.
  11.  In some recent judgments in the High Court there have been suggestions  that  in order to enable  the court to properly  decide  the  issue of bail it is imperative on the prosecution to produce evidence either on affidavit or  in the  form of depositions.   This requirement,  if  it is pushed too  far, can have serious  repercussions  on  trials.  The statements  in some of the judgments suggest that it is necessary for the court to liave this evidence to enable it to  determine  how  strong  or weak the  prosecution case is or to enable the court to find out  whether  there  is a  defence available to the accused in order to decide whether or not to release the 'prisoner on bail.  In our  view such a requirement would be wholly wrong and highly prejudicial because any finding that the evidence was strong or weak would in effect amount to determining the very issue which must be reserved to the  trial court.   Applications  for  bail must never assume the role of semi trials.  Courts  must continue  to confine themselves strictly to the issue of bail which can be resolved without the need of looking at the evidence.  Indeed  where a trial will be with  a jury  the issue of  sufficiency or insufficiency of the  evidence,  is a matter,  if there  is evidence,  which will be left to the  jury to  decide.  It  must be remembered  that  in many cases bail applications will be made very early, and in most cases, it will be soon after the arrest of an accused person when  the  prosecution  will have not even started to take statements  from  witnesses.  It would  impose an intolerable  burden  on the prosecution  to expect them produce evidence at that stage. It is a burden which would be difficult to discharge. The decision to find whether there is sufficient or insufficient evidence  or whether there  is a defence  available  to the  accused  can  only be  made after the evidence  called has been  tested  through  cross examination  by both  parties and this will not be available at bail applications  except on those rare occasions when committals have been made after a preliminary inquiry. It must be remembered that summary committal is a procedure which the law allows the prosecution  to follow and it should  not be the basis of criticism against them  if  they  choose  to follow  it. However where depositions are available and they show a possible defence to be available to the prisoner the court should take them into account when considering applications  for bail but  it should  always be remembered  that it is not a decisive factor. In  the  Canadian  case of  R-v-MONVOISIN(1911) 3 Man L.R. 68 although the depositions clearly showed a possible defence to the charge bail was  refused. In  our  view  the  discretion  to grant bail should not be exercised  on affidavit  evidence  which  has not been tested in cross examination.
  12.  We have already indicated earlier in this judgment that the discretion to grant bail in the more serious offences must be exercised with extreme caution and care. We must therefore  consider  whether there will be circumstances in which a person accused of any serious or capital offences can be released on bail.
  13.  Murder, apart from treason, is the most  heinous  offence  k'nown to the  law.  The punishment for murder, under our law, is death.  The law of this country has always been that it is rare indeed unusual that a person charged with an offence of the highest magnitude like murder should be admitted to bail. From our perusal of cases from other  jurisdiction  it is clear that this is also the law in most common law countries. The general practice  in  most commonwealth  countries  is that the discretion  to  release a capital offender  on bail is very unusual  and  is rarely exercised and when it is done, it is only in the rarest of cases and only on proof of exceptional circumstances. In  our view it must  be rare when  the  interest  of  justice can require that a capital offender or persons accused of serious offences should be released on bail. In our judgment it cannot be an exceptional circumstance that a person is well liked by his neighbours; that he is a prominent member of a given community; that his church leader thinks highly of  him; that  he is a sickly person  or that  he has a possible  defence to the charge. While a court is entitled to consider these factors in bail applications, they do not constitute exceptional circumstances to justify releasing a capital offender or  persons acccused  of  serious  offences  on bail. We would like to stress it once again that the discretion to grant bail should not be exercised on affidavit evidence.
  14. PRONOUNCED in Court at  Blantyre on this 21st day of August, 1995.