State v Majawa (Criminal Review Case 2 of 2024) [2024] MWHC 37 (21 July 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL REVIEW CASE NO, 2 OF 2024 [Being Criminal Case No.98 of 2024, FGM Court sitting at Blantyre Central] BETWEEN: THE STATE AND MAXWELL MAJAWA CORAM: HONOURABLE JUSTICE J.M. CHIRWA Mr. C, Chidothe, Counsel for the Applicant. R. Chanonga, Official Court Interpreter. ve gph BR ORDER ON REVIEW 1. Introduction:- Maxwell Majawa, the Applicant herein, has moved this Court to call for the record of the criminal proceedings in the Blantyre Central First Grade Magistrate’s Court (“the court below”) in Criminal Case Number 98 of 2024 between the Republic vy Maxwell Majawa to the High Court and exercise its powers of review on the legality and propriety of entering a plea of guilty against him on the charge of having sexual intercourse with a girl child under the age of 18 years. 2. Background:- The Applicant was charged in the court below with the offence of having sexual intercourse with a child contrary to Section 138(1) of the Penal Code. The particulars of the offence were stated as follows: “Maxwell Majawa on 13 January, 2024 at Machinjiri, Area 5 Township in the City of Blantyre had sexual intercourse with a girl child V.C under the age of 18” After the charge had been read out to him, the Applicant responded by saying that he had heard and understood the reading of the same. He went on to admit the charge. He further went on to state as follows: “J had sexual relations with the girl who is 15 or 16 years old but under 18. I allowed my male sexual organ to penetrate her female sexual organ. I know my plea of guilty may end in my finding guilty and conviction.” The court below then entered a “plea of guilty” against the Applicant. The prosecution proceeded to narrate the facts of the case and tendered as exhibits the following documents: (a) “Exhibit P1” (a referral letter), (b) “Exhibit P2” (a medical report), (c) “Exhibit P3” (the caution statement), (d) “Exhibit P4” (Evidence of Arrest). After the narration of the facts by the prosecution, as aforesaid, the Applicant confirmed that he had heard the reading of the facts of the case and admitted the same to be correct. The Applicant went on to say that he had no additions or subtractions because the facts were correct. Consequently, the court below entered a judgment against the Applicant but did not proceed to pass the sentence. 3. The Applicant’s case:- It is the case of the Applicant that the court below did not comply with the mandatory requirement of Section 251 of the Criminal Procedure & Evidence Code (“the CP & EC”) that the trial court ought to outline the consequences of the guilty plea to the accused in that he will be convicted and sentenced there and then and that consequently he may be committed to prison. It is the further case of the Applicant that it is trite law that the trial court informs the accused person in the language understood by him that there is the likelihood of long sentences in serious offences, like the present offence which is one of defilement, It is thus, the contention of the Applicant that the plea of guilty which was entered by the court below was defective for failure to comply with the proviso of Section 251 of the CP & EC. It is the further case of the Applicant that the offence of defilement is a unique offence as it has a statutory defence, namely, the offence is not committed where the accused person has a reasonable belief that the girl was above the age of 18. It is thus, the contention of the Applicant that it cannot be expected that a lay person he would easily have known about this defence. And relying on the authorities of The State v Baleki 1997-1980 B.L.R. 35 and Michael LR.C. v Republic (1966) 12 F.L.R. 104 (FD it is the submission of the Applicant that it was incumbent upon the court below to explain the statutory defence available to him. It is thus, the contention of the Applicant that failure by the court below to explain the available defence to him is not only unlawful but also anathema to a fair trial which is guaranteed by the Constitution of Malawi. There is however, no prayer after these submissions sought by the Applicant. 4. Issue for determination by this Court:- The issue for determination by this Court is whether or not the court below erred in law in convicting the Appellant herein, as aforesaid. §, Determination:- This Court has powers to review any proceedings before any subordinate court under Sections 26(1) of the Courts Act and 360 of the CP & EC. And when exercising such powers, this Court is at liberty to hear any party either personally or by a legal practitioner (see: Section 363(1) of the CP & EC), hence the hearing of this application ex parte through Counsel - (see: Section 362 (1) of the CP&EC). Now, when this Court is exercising the powers of review it is mandated to exercise the same powers as are conferred on it on appeal by Sections 353(2)(a), (b) and (c) and 356 of the CP & EC. It is on this premise that this Court intends to proceed with this review as if it were an appeal against the decision of the court below. The first point calling for consideration is whether the court below erred in law in entering a plea of guilty without having regard to the mandatory provisions of the proviso to Section 251(2) of the CP & EC. The wording of subsection 2 is as follows: “(2) If the accused admits the truth of the charge his admission shall be recorded as nearly as possible in the words used by him and he may be convicted and sentenced thereon: Provided that before a plea of guilty is recorded, the court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit without qualification the truth of the charge against him.” Having perused the record of the proceedings in the court below very carefully this Court is constrained to subscribe to the Applicant’s contention that the court below had not complied with the provisions of the proviso to Section 251(2) of the CP & EC. Quite contrary to the Applicant’s said contention, it is evident from the court record from page 1 through to page 5 that the court below only proceeded to find the Applicant guilty and went on to convict him on his own plea of guilty after the Applicant had confirmed that he had understood the reading of the charge and admitted the same. And in his own words the Applicant went on to say that “J had sexual relations with the girl who is 15 or 16 years old but under 18”. The Applicant also acknowledged that he knew that his plea of guilty could end in a finding of guilty being entered against him and a conviction thereon. And even after the facts of the case had been narrated by the prosecution, the Applicant responded as follows: “TI have heard the narrated facts. They are correct. I have no additions or subtractions. The facts are correct.” In the premises, it is the finding of this Court that the court below did comply with the provisions of the proviso to Section 251(2) of the CP & EC before proceeding to convict the Applicant herein. In passing, this Court finds it pertinent to say that it cannot be part of its business in these proceedings to review the propriety or merits of the discussions between the Applicant and the prosecution outside court which, allegedly, made him admit the charge in court. But even if it were, which is, however, not the case, the contents of exhibit P3, the caution statement, do in fact contradict the Applicant’s said assertion because the Applicant is therein recorded to have admitted having had unprotected sexual intercourse with the girl. The second and last point calling for consideration by this Court is whether the court below erred in law in not bringing to the attention of the Applicant the statutory defence in defilement cases. Albeit the defence which the Applicant argues was not brought to his attention scems to be no longer the defence under Section 138 of the Penal Code, this Court fully subscribes to the law that there is a duty on a trial judge when the accused is unrepresented to exercise the greatest vigilance with the object of ensuring that before a plea of guilty is accepted, the accused person should fully comprehend exactly what a plea of guilty involves. This Court had the occasion of perusing the judgment in the case of Michael Iro v The Republic [1966] 12 FLR 104 (Fiji), a case from a foreign jurisdiction, cited on behalf of the Applicant and found the exposition of the law therein to be correct and thus, persuasive. The said case was cited with approval in the case of Yamikani Paul v The Republic Criminal Appeal Number 16 of 2017 (unreported). Section 138 of the Penal Code which deals with the offence of defilement (as amended) provides as follows: “¢1) Any male person who has sexual intercourse with a female child shall be guilty of a felony and shall, upon conviction, be liable to imprisonment for life. (2) Any female person who has sexual intercourse with a male child shall be guilty of a felony and shall, upon conviction, be liable to imprisonment for life. (3) It shall be a defence to a charge under subsection (1) or subsection (2) if it is proved to the court that the male person or female person so charged is a child and- (a) the age difference between the person so charged and the female child or male child against whom the alleged offence is alleged to have been committed is two years or less; and (b) the female child or male child against whom the offence is alleged to have been committed consented to the sexual intercourse.” This Court also had the occasion of perusing the cases of The State vy Baleki [1979- 1980] BLR 35 and Gave v The State [2001] BLR 143 CA. cited with approval in the case of Yamikani Paul v The Republic, Criminal Appeal No. 16 of 2017 (unreported) again cited on behalf of the Applicant herein and is further inclined to subscribe to the Applicant’s contention that the court below indeed erred in law in not bringing to the attention of the Applicant the statutory defences in defilement cases. It may be necessary here to state that Section 42(2) of the Constitution guarantees every accused person with, inter alia, a right to a fair trial. There is no doubt in this Court’s mind that the court below was fully conscious of the availability of the defences under Section 138 of the Penal Code. This is evident from page 3 of the typed judgment of the court below where it is stated as follows: “Subsection 138(3) of the Penal Code provides for defences to this charge”. Be that as it may, there is however, no place in the whole record of the proceedings in the court below where it shows that the court below had brought to the attention of the Applicant the fact that as an accused person there were some special defences available to him under the section. And since the Applicant was at the material time unrepresented, it was more imperative for the court below to have brought to his attention the availability of the said defences. The fact that this was not done leads, in this Court’s view, to the conclusion that the Applicant was indeed not given a fair trial. In the premises, this Court would be inclined to make a finding that the court below indeed erred in law in not bringing to the attention of the Applicant the statutory defences available to him as an accused person under Section 138 of the Penal Code. 6. Conclusion:- Albeit this Court, has not upheld the first ground for review which, consequently, is hereby dismissed, this Court having upheld the second ground for the review, now proceeds to reverse the decision of the court below convicting the Applicant herein and makes an order that he be retried by a court of competent jurisdiction. Further, should the Applicant herein be on bail pending sentence, then he should continue to be so until the conclusion of his case. However, should the Applicant herein have been remanded in custody following his conviction, then the court below may consider releasing him on bail on such terms and conditions that the court may deem fit. It is so ordered. Dated this Thirty-first day eet